Tyson v. Austill

53 So. 263, 168 Ala. 525, 1909 Ala. LEXIS 584

Opinions

MAYFIELD, J.

The case made on appeal is thus stated by counsel for appellee: “On the 26th day of August, 1887, appellee bargained and sold to appellant, John B. Tyson, six hundred (600) acres of land lying in Lowndes county, and executed and delivered to him a deed to said lands. At the time of the sale and convey-anee of said lands to said Tyson, appellee was indebted to the American Freehold Land Mortgage Company of London, Ltd., in the sum of two thousand two hundred and fifty dollars ($2,250.00), which fell due on the first day of December, 1887, besides certain interest notes mentioned and described in the bill. It is averred in the bill that as a part of the consideration for the sale and conveyance of the land by appellee to appellant John B. Tyson the said Tyson assumed and agreed to pay the debt owing by appellee to the American Freehold Land Mortgage Company. It is further alleged in the bill that the said Tyson has failed to pay and discharge said indebtedness to said mortgage company, and that the same remains an existing liability* against appellee. Under these averments, the bill seeks to establish a lien upon the lands therein named to the extent of the indebtedness which the said Tyson had agreed to pay to the mortgage Company, and which he failed to pay. In its answer the mortgage company admits the truth of the allegations contained in the bill of complaint. Demurrers to the bill were interposed by the appellant John B. Tyson, which were overruled by the chancellor, and from the decree overruling said demurrers the appeal is taken in this case.”

The equity of the bill, as contended by appellee, is that Mrs. Austin has a vendor’s lien upon the land for the money agreed to be paid by Tyson to the mortgage Company. If the averments of the bill are true (and on demurrer they must be so construed), Tyson, the grantee, became the principal to pay this mortgage debt of $2,250, originally due from Mrs. Austill to the mortgage company, and Mrs. Austill, the surety only; the land remaining a secúrity for the same debt.—1 Jones on Mortg. 740-742; Paine v. Jones, 76 N. Y. 274; Huyler v. Atwood, 26 N. J. Eq. 504. Mrs. Austill having conveyed the lands to Tyson subject to the mortgage, and Tyson having agreed, as a part of the sale and conveyance, to pay the mortgage debt to the mortgagee, the only liability resting on Mrs. Austill thereafter to pay the debt as between her and Tyson was a personal one, and that of surety — Tyson being the principal debtor. This liability, of course, was barred by the statutory-limitations of six years, though the right of the mortgagee to foreclose the mortgage or of the vendor to foreclose the lien might exist for 10 or 20 years, depending upon questions of adverse possession, etc., unnecessary here to discuss.—Coyle v. Wilkins, 57 Ala. 108; Duval v. McCloskey, 1 Ala 744.

Of course, Mrs. Aiustill has not- now and has never had any right to foreclose the mortgage. She has no interest in the mortgage whatever, and none in the lands except in so far as they are security for a debt for which she was personally liable; but, so long as she is personally liable to pay that debt, she has an interest in the lands and may subject them to the payment of the debt, rather than pay.it herself. Olur decisions have declared that she has a. vendor’s lien, or one in the nature thereof, upon these lands, for the payment of this debt for which she is personally liable.—Carver v. Eads, 65 Ala. 191; Bunkley v. Lynch, 47 Ala. 210; Buford v. McCormack, 57 Ala. 428. But the moment Mrs. Austill ceased to be liable to pay this debt then her right- to subject the land ceased. If Tyson paid the debt, if the mortgagee released her from payment, or if any other cause extinguished her liability to pay the debt, then her right to,subject the land to its payment terminated. She never had any right to. the money that Tyson agreed to pay to the mortgage company. The mortgage company could give this money to Tyson without detriment to her. Tyson did not agree to pay this to her for the mortgage company, but agreed to pay it, in her stead, to the mortgage company. Tyson assumed her debt to the company. He owed it to the company, not to her. Immunity from that debt is all that she bargained for, and is all that she •can ash. If the mortgage company assented to the contract between her and Tyson or ratified it, it was then and there chargeable with knowledge of the relation of principal and surety subsisting between her and Tyson; and if it released Tyson, the principal, it thereby released her, the surety; and if, by its fault, it cannot now enforce the debt against Tyson, then it cannot enforce it against her. No foreclosure, whether of the mortgage or of the vendor’s lien, can possibly inure to her benefit, other than to protect her from liability to pay the mortgage debt. If she has no liability, she has no rights. The only right Mrs. Austill ever had after she sold and conveyed the land to Tyson was her equitable right to compel Tyson, the vendee, who was her principal, to discharge or pay the debt for her protecton as surety; and her only remedy was by bill to enforce her vendor’s lien. — 3 Pomeroy’s Eq. Jur. § 1207, p. 2414.

It is clear from the averments of the bill that the mortgage company cannot now compel her to pay this debt. It affirmatively appears that its right of action is barred by the statute of limitations of six and ten years. Applying this rule to the averments of the bill, it shows no liability on Mrs. Austill to pay the mortgage debt, and therefore no right to foreclose her lien, if it could be said that she had such at the time of the filing' of the bill. If she cannot be made to pay the debt (and she certainly cannot, if the averments of the bill are true), why should she desire to enforce the lien?' The proceeds could in no event go to her, because she never was entitled thereto. If it could be said that the mortgage company could foreclose the mortgage, that fact alone would not give Mrs. Austin the right to foreclose her vendor’s lien. Her bill, if filed in time, would have to allege that she had paid the debt for, which she was surety, or show a state of facts which would render it necessary to foreclose her vendor’s lien in order to protect her from the payment. The cases of Young v. Hawkins, 74 Ala. 370, and Coleman & Carroll v. Hatcher & Brannon, 77 Ala. 221, were very much like the present case, and certainly involved the identical questions of law. In the latter case, Stone, C. J., referring to the former, used the following language: “In Young v. Hawkins, 74 Ala. 370, Hawkins was indebted to Payne by promissory note for part purchase of lands, Hawkins then sold the lands to Young, and in part purchase Young 'agreed to pay the note which Hawkins owed Payne, and which had become the property of another. Young then sold the lands to Hood, who also promised in part purchase to pay the said Hawkins note to Payne, unpaid in the purchase. In this state of the case, and without paying the said note he had given to Payne, Hawkins filed a bill against Young and Hood, and sought to subject the lands to the unpaid obligation they had each incurred to pay the said Hawkins note given to Payne. The holder of that note was not made a party. We decided he could not recover, without first paying the Payne note. We said: ‘It cannot be denied that if Hawkins, after making the sale to Young, had extinguished the liability on the note Young had promised to pay, Young, and probably Hoocl, would have thereby become liable to pay the money to Hawkins, and he could then have maintained a bill against the two, and against the land. So Mrs. Waters, or whoever may he the rightful owner of Hawkins’ unpaid purchase-money note, may. maintain a bill against Young and Hood and the land on the promises to pay that note given in the several purchases made of Hawkins’ allotted interest in the land. But, to maintain a bill by Hawkins alone on the state of facts first a,hove supposed, it is necessary to aver the special facts which revest in Hawkins the right to demand and receive the money. This because Young was not required to promise, and did not promise to pay the money to Hawkins. The consideration moved from Hawkins, and the promise was made to him; but the promise was to pa.y the money to the holder of the note, and it was procured to be so made by Hawkins himself.’ The principle settled by this case is that by having the promise made, as part of the contract, to pay the money to the holder of the note Hawkins gave in his purchase, he (Hawkins) disabled himself to assert ownership of the debt created in the Young purchase, unless he had either paid the original debt himself, or the holder of the note, being apprised of the arrangement, had repudiated it, and elected to look alone to Hawkins for payment.” These same cases were cited and reviewed by the same Chief Justice in the case of Dimmick v. Register, 92 Ala. 458, 9 South. 79. It therefore follows that, before Mrs. Austill can enforce the vendor’s lien against Tyson, she must show that she has paid this debt, or that the mortgage company has repudiated the contract between her and Tyson, by which Tyson agreed to pay her debt to the company, and that the company could or would proceed to make her pay the debt. — Authorities, supra. These defects of the bill were pointed out by the demurrer, and the demurrer should have been .sustained. The bill on its face also clearly showed that all the claims and rights asserted have been barred by the statute of limitations or lost by laches, and for that reason the demurrer should have been sustained.—Allen v. Clarke, 106 Ala. 600, 17 South. 713.

The bill is without color of equity or right as against Mrs. Tyson.

Dowdell, C. J., and Anderson, McClellan, Sayre, and Evans, JJ., a majority of the court, are of the opinion' that under the authority of note to section 1207 of 3 Pomeroy’s Equity Jurisprudence, and of Young v. Hawkins, 74 Ala. 370, the bill had equity, and is not subject to any of the grounds of demurrer assigned, and that the decree of the chancellor must be affirmed.

Affirmed.

Simpson, J., concurs in the dissenting opinion of Mayfield, J., .and i.s of the opinion that the decree should be reversed.