Opinion
5 Div. 763.
November 25, 1920.
Appeal from Circuit Court, Tallapoosa County; S. L. Brewer, Judge.
W. R. Whatley, of Alexander City, for appellant.
Among the many insistences for error made by appellant as to the construction of deeds, evidence to vary writings, and other matters not treated in the opinion, appellant insists that the payment by notes constitutes a waiver of the lien. 132 Ala. 150, 31 So. 448; 80 Ala. 486, 2 So. 518; 5 Bush (Ky.) 646; 3 M. K. 655. The word "consideration" signifies a term of contract, and hence the writing alone can be examined. Wigmore on Evidence, § 2433.
S. J. Darby and J. Sanford Mullins, both of Alexander City, for appellee.
There is but one question in this case, and that is whether or not the vendor's lien was waived. Our insistence is that it was not waived. In support thereof we cite the following: 56 Ala. 126; 58 Ala. 667; 65 Ala. 190; 70 Ala. 347; 108 Ala. 535, 19 So. 41; 128 Ala. 569, 30 So. 540, 86 Am. St. Rep. 159.
The main contention of the appellant in this case is that the recital in the deed from the appellee, by her attorney in fact, to the appellant J. L. Reagan, to wit, "Paid by giving seven notes due November 15, 1911, and each year thereafter" operated as a waiver of the vendor's lien upon the theory that it shows a novation, that is, that the notes were not given as evidence of or security for the debt, but as a substitute, under the authority of Walton v. Young, 132 Ala. 150, 31 So. 448. This recital was, at most, an acknowledgment of the payment or satisfaction of the purchase price of the land, and was not conclusive upon the vendor that the lien did not exist or was waived, and could do no more than place the burden upon this complainant of showing that the lien had not been waived. This court has repeatedly held that the formal acknowledgment in a deed of the payment or receipt of the consideration for the conveyance does not conclude the grantor or those holding under him, if in fact the purchase price remains unpaid. Cook v. Atkins, 173 Ala. 363, 56 So. 224; Bankhead v. Owen, 60 Ala. 457; Wilkinson v. May, 69 Ala. 33. The notes in question recite that they are given for the purchase price of the land, and show that they are evidence or security for the debt, rather than a mere substitute or novation of same, and evidenced the intention of the parties to retain the vendor's lien. In addition to the recitals in the notes, there was evidence which could have well satisfied the trial court, who saw and heard the witnesses, that it was the purpose and intention of the parties to retain the lien for the purchase money.
The case of Walton v. Young, 132 Ala. 150, 31 So. 448, in no sense conflicts with this holding, as it dealt with notes of third persons accepted as the consideration for the purchase of the land, just as a horse or any other chattel, and there was in fact no debt contracted from the vendee to the vendor. Nor does that case hold that such a recital as we have in the present deed would operate as a waiver of the lien, or that it would be conclusive if such was the effect of same.
The judgment of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and BROWN, JJ., concur.