Woodward v. Echols

58 Ala. 665

• Court: Supreme Court of Alabama
• Decided: December 15, 1877
• Status: Published

Opinion

BRICKELL, C. J.

1. The transfer by delivery of the promissory note given to the vendor for the purchase-money of the lands, if it had been made subsequent to the conveyance of the legal title, would not have passed the equitable lien of the vendor. — Bankhead v. Owen, at present term; Hightower v. Rigsby, 56 Ala. 126.

2. The transfer of the note was, however, prior to the conveyance of the legal title. The legal title remaining in the vendor as a security for the purchase-money, the relation of the parties was, in legal effect, that of mortgagor and mortgagee. The transfer of the note for the purchase-money, whatever may have been its form — whether by delivery or in writing freeing the vendor from responsibility for its ultimate payment — was a transfer of the security for its payment, or rather the security which was incident to the debt, passed by a transfer of the debt, the contrary not being stipulated.

3. The appellee had knowledge of the transfer of the debt, before the conveyance to him was executed. It was not within the power of the vendor and of the appellee, to impair the security for the debt after the transfer to the appellant. The conveyance subsequently made, is subordinate to it, and offers no obstacle to its enforcement.

4. The taking a new, note from the appellee, extending the day of payment, did not impair the security, and all intention to waive it is negatived by the recital in the note of its original consideration. — Conner v. Banks, 18 Ala. 42; Boyd v. Beck, 29 Ala. 703; Bryant v. Stephens, 58 Ala. 636.

The decree of the Chancellor is erroneous, and must be reversed, and the cause remanded.