BBICKELL, C. J.
— The motion to dismiss the appeal, and to strike out the assignments of error relating to the first interlocutory decree, must be overruled, on the authority of Walker v. Crawford, 70 Ala. 567.
The promissory notes made by Stringfellow, payable to Pleard, and assigned 'to the appellee, on their face express as the consideration upon which they were given, “ part payment for a store-house and lot, known as the Clitherall lot.” The expression or recital is not conclusive, and parol evidence is admissible to show a want of consideration, or any other additional consideration of value. General or particular recitals of consideration, in contracts or conveyances, are open to inquiry, and the real consideration may be shown to support, or to modify, or to defeat them.— Wilkerson v. Tillman, 66 Ala. 532. It is clearly shown, and is undisputed, that the real consideration of the notes was not only the purchase-money of the lauds designated,’ but the, purchase of another parcel of lands; and'commingled with the purchase of the estate of the payee in the lands, was the purchase of his interest in a stock of merchandise,- belonging, as did the lands, to a partnership of which he and the maker of the notes were members. The transaction was had in consummation of a dissolution of the partnership, and the contract of purchase was entire ; a sale of the estate in the lands, and of the interest in the merchandise, [213]*213for a gross sum, a special value or price not having been fixed on either interest. It was not until near or quite eighteen months after the sale, and. after the making of the notes, that there was any memorandum of it reduced to writing, and then both parties joined in the execution of a conveyance of the lands to the wife of the purchaser.
The vendor of lands, not parting with his estate, retains it as a security for .the payment of the purchase-money. To the contract of sale, in such case, all the essential ingredients of a mortgage attach.' The only remedy of the vendee to acquire title to the estate is in equity for a redemption, or, rather, for a specific performance. For his relief a court of equity will not intervene, unless he aver, and if the averment is not admitted, prove payment of the purchase-money, the part of the contract he was bound to perform. And if the vendee fails to pay the purchase-money, the court will, as against him, enforce performance of the contract, by decreeing a sale of the lands for its payment. — Bankhead v. Owen, 60 Ala. 457. It was in this relation the vendor and vendee were standing, before the execution of the conveyance to Mrs. Stringfellow. "Whether while in this relation either party could have obtained specific performance in a court of equity, or the terms upon which it would be decreed, is not a question now involved.
. By the execution of the conveyance, the relation of the parties was changed. The vendor parted with his estate in the lands — in them he ceased to have any right — -thereafter he had neither a jus in re, nor a jus ad rem. — Bankhead v. Owen, supra. The conveyance was, however, voluntary — for it the donee gave, and the donor received, no consideration. It is the settled law of this State, that for unpaid purchase-money of lands, the vendor, though he makes an absolute conveyance, has and retains an equitable lien, if he does not take an independent security, unless there is of it, either expressly, or by implication, a waiver or discharge. And the lien will be enforced against the vendee, volunteers, and all others claiming under him with notice — against all persons other than bona fide purchasers without notice. — Bankhead v. Owen, supra; Simpson v. McCallister, 56 Ala. 228. When only the personal obligation of the vendee is taken for the payment of the purchase-money, in the absence of an agreement to the contrary, the lien is presumed to exist, and the burden of proof is on the purchaser to establish that, in the particular case, it has been intentionally displaced, or waived by the consent of the parties. “If under all the circumstances, it remains in doubt, then the lien attaches. The difficulty lies in determining what circumstances are to be deemed sufficient to repel or to displace the lien, or to amount to a waiver of it.” — 2 Story’s Eq. Jur. § 1224. [214]*214The whole transaction between the parties must be considered, and if from the transaction as a whole, it clearly appears the vendor trusted exclusively to the personal responsibility of the vendee, and did not look to the lands, the existence of the lien is repelled.— Coster v. Bank of Georgia, 24 Ala. 37.
■ The vendor of personal property, parting with the possession, has no implied or equitable lien for the payment of the purchase-money — he must look alone to the personal responsibility of the vendee. — 1 Lead. Cases in Eq. 502. In Russell v. McCormick, 45 Ala. 587, this court decided that the equitable lien of a vendor for the payment of .the purchase-money of lands, was not waived, because the. obligation taken for its payment included the price of personal property sold at the same time, when the sum which -was agreed to be paid for the lands, could, by reference to’ the writings the parties had executed, or by refei’enee to extrinfeic evidence, be ascertained and distinguished. There seems to be no reasonable ground to doubt the correctness of the decision. The mere commingling-in the written obligation for the payment of the purchase-money, of the price of personal property sold at the same time, and to be paid for at the same time as the purchase-money of the lands, indicated only that the parties abstained from the ceremony of máking or taking two obligations or evidences of debt, when one would suffice for all their purposes, the reduction to writing of the fact that the one is indebted to the other in a specific sum of money, payable at a time certain. In such case, the parties in the inception and consummation of the sale distinguish their relations as vendor and vendee of real and of personal property, by fixing upon each species of the property a separate price and value. The price and value of each is' matter of distinct negotiation and agreement. The note, bond, or other instrument taken for the aggregated prices, is not the debt which is created, but merely evidence of it, and without impairing its dignity as evidence, there can be inquiry 'into the fact that"a distinct part of the sum expressed as owing to the vendor was the purchase-money of the lands. The fact being ascertained, if there be not circumstances to rejiel the presumption, the lien of the vendor upon the lands for the payment of the price is presumed to exist.
In the present case, the sale is of real and personal property, under an entire contract for a gross sum. There is, and can be no lien on the personal property by operation or implication of law. There was not in the sale, by any act or by agreement of the vendor and the vendee, any discrimination made between the proportions of the gross sum, which was to be paid for either personal property or lands. How can a court discriminate, and pronounce that, upon such a sale, the vendor [215]*215for any designated part of the gross sum lias a lien on the lands, and for another specific part has not ? The lien exists only for the payment of the purchase-money of the lands. It is raised and implied by a court of equity, for the protection of the vendor, and upon its maxim, that it is unconscientious for one man to get and keep the lauds of another without paying the purchase-money.
Free access — add to your briefcase to read the full text and ask questions with AI
BBICKELL, C. J.
— The motion to dismiss the appeal, and to strike out the assignments of error relating to the first interlocutory decree, must be overruled, on the authority of Walker v. Crawford, 70 Ala. 567.
The promissory notes made by Stringfellow, payable to Pleard, and assigned 'to the appellee, on their face express as the consideration upon which they were given, “ part payment for a store-house and lot, known as the Clitherall lot.” The expression or recital is not conclusive, and parol evidence is admissible to show a want of consideration, or any other additional consideration of value. General or particular recitals of consideration, in contracts or conveyances, are open to inquiry, and the real consideration may be shown to support, or to modify, or to defeat them.— Wilkerson v. Tillman, 66 Ala. 532. It is clearly shown, and is undisputed, that the real consideration of the notes was not only the purchase-money of the lauds designated,’ but the, purchase of another parcel of lands; and'commingled with the purchase of the estate of the payee in the lands, was the purchase of his interest in a stock of merchandise,- belonging, as did the lands, to a partnership of which he and the maker of the notes were members. The transaction was had in consummation of a dissolution of the partnership, and the contract of purchase was entire ; a sale of the estate in the lands, and of the interest in the merchandise, [213]*213for a gross sum, a special value or price not having been fixed on either interest. It was not until near or quite eighteen months after the sale, and. after the making of the notes, that there was any memorandum of it reduced to writing, and then both parties joined in the execution of a conveyance of the lands to the wife of the purchaser.
The vendor of lands, not parting with his estate, retains it as a security for .the payment of the purchase-money. To the contract of sale, in such case, all the essential ingredients of a mortgage attach.' The only remedy of the vendee to acquire title to the estate is in equity for a redemption, or, rather, for a specific performance. For his relief a court of equity will not intervene, unless he aver, and if the averment is not admitted, prove payment of the purchase-money, the part of the contract he was bound to perform. And if the vendee fails to pay the purchase-money, the court will, as against him, enforce performance of the contract, by decreeing a sale of the lands for its payment. — Bankhead v. Owen, 60 Ala. 457. It was in this relation the vendor and vendee were standing, before the execution of the conveyance to Mrs. Stringfellow. "Whether while in this relation either party could have obtained specific performance in a court of equity, or the terms upon which it would be decreed, is not a question now involved.
. By the execution of the conveyance, the relation of the parties was changed. The vendor parted with his estate in the lands — in them he ceased to have any right — -thereafter he had neither a jus in re, nor a jus ad rem. — Bankhead v. Owen, supra. The conveyance was, however, voluntary — for it the donee gave, and the donor received, no consideration. It is the settled law of this State, that for unpaid purchase-money of lands, the vendor, though he makes an absolute conveyance, has and retains an equitable lien, if he does not take an independent security, unless there is of it, either expressly, or by implication, a waiver or discharge. And the lien will be enforced against the vendee, volunteers, and all others claiming under him with notice — against all persons other than bona fide purchasers without notice. — Bankhead v. Owen, supra; Simpson v. McCallister, 56 Ala. 228. When only the personal obligation of the vendee is taken for the payment of the purchase-money, in the absence of an agreement to the contrary, the lien is presumed to exist, and the burden of proof is on the purchaser to establish that, in the particular case, it has been intentionally displaced, or waived by the consent of the parties. “If under all the circumstances, it remains in doubt, then the lien attaches. The difficulty lies in determining what circumstances are to be deemed sufficient to repel or to displace the lien, or to amount to a waiver of it.” — 2 Story’s Eq. Jur. § 1224. [214]*214The whole transaction between the parties must be considered, and if from the transaction as a whole, it clearly appears the vendor trusted exclusively to the personal responsibility of the vendee, and did not look to the lands, the existence of the lien is repelled.— Coster v. Bank of Georgia, 24 Ala. 37.
■ The vendor of personal property, parting with the possession, has no implied or equitable lien for the payment of the purchase-money — he must look alone to the personal responsibility of the vendee. — 1 Lead. Cases in Eq. 502. In Russell v. McCormick, 45 Ala. 587, this court decided that the equitable lien of a vendor for the payment of .the purchase-money of lands, was not waived, because the. obligation taken for its payment included the price of personal property sold at the same time, when the sum which -was agreed to be paid for the lands, could, by reference to’ the writings the parties had executed, or by refei’enee to extrinfeic evidence, be ascertained and distinguished. There seems to be no reasonable ground to doubt the correctness of the decision. The mere commingling-in the written obligation for the payment of the purchase-money, of the price of personal property sold at the same time, and to be paid for at the same time as the purchase-money of the lands, indicated only that the parties abstained from the ceremony of máking or taking two obligations or evidences of debt, when one would suffice for all their purposes, the reduction to writing of the fact that the one is indebted to the other in a specific sum of money, payable at a time certain. In such case, the parties in the inception and consummation of the sale distinguish their relations as vendor and vendee of real and of personal property, by fixing upon each species of the property a separate price and value. The price and value of each is' matter of distinct negotiation and agreement. The note, bond, or other instrument taken for the aggregated prices, is not the debt which is created, but merely evidence of it, and without impairing its dignity as evidence, there can be inquiry 'into the fact that"a distinct part of the sum expressed as owing to the vendor was the purchase-money of the lands. The fact being ascertained, if there be not circumstances to rejiel the presumption, the lien of the vendor upon the lands for the payment of the price is presumed to exist.
In the present case, the sale is of real and personal property, under an entire contract for a gross sum. There is, and can be no lien on the personal property by operation or implication of law. There was not in the sale, by any act or by agreement of the vendor and the vendee, any discrimination made between the proportions of the gross sum, which was to be paid for either personal property or lands. How can a court discriminate, and pronounce that, upon such a sale, the vendor [215]*215for any designated part of the gross sum lias a lien on the lands, and for another specific part has not ? The lien exists only for the payment of the purchase-money of the lands. It is raised and implied by a court of equity, for the protection of the vendor, and upon its maxim, that it is unconscientious for one man to get and keep the lauds of another without paying the purchase-money. But when, by the contract, the vendor and vendee do not distinguish the consideration-money from other considerations, for which the law gives no lien ; when tbe considerations are blended and combined, and it is impossible without resorting to conjectural inquiries to separate them, the presumption must be that the vendor did not look to the lands for payment, but relied exclusively on the personal responsibility of the vendee. — -McCandlish v. Keen, 13 Grattan, 615. The lien not arising by implication, or operation of law, but its existence being repelled by the nature of the transaction, any other right to charge tbe lands, dependent upon ’ the agreement of the parties, must be manifested by writing — it can not rest in parol. Patton v. Beecher, 62 Ala. 519. The parol promise of String-fellow, when the conveyance was executed, that Mrs. String-fellow would for his notes substitute her own, and bis verbal declaration, that there was or would be a lien on the lands, are insufficient, if they had been averred in tbe bill, to create a trust a court of equity can enforce.
It is unnecessary to consider any other questions the case is supposed to involve. Tbe appellee has not established an equity to charge the lands, and the decree of the chancellor must be reversed and a decree here rendered, dismissing tlie bill; and be must pay the costs in the court of chancery to be taxed by the register, and the costs of appeal.