Opinion
7 Div. 691.
March 19, 1942.
Appeal from Circuit Court, DeKalb County; W. J. Haralson, Judge.
W. Jay Tindle, of Fort Payne, and Oliver D. Street, of Guntersville, for appellants.
The vendor's lien covers only the land conveyed by the vendor to the vendee. Hood v. Christopher, 214 Ala. 603, 108 So. 519. Neither the averment of the bill nor the deed shows the extent of the rights, title and interest in the land conveyed by Mrs. Klepper to Case. The bill, therefore, does not show the extent of complainant's right or title. It is a mere quitclaim. Derrick v. Brown, 66 Ala. 162; Kyle v. McKenzie, 94 Ala. 236, 10 So. 654; Vary v. Smith, 162 Ala. 457, 50 So. 187. There being no averment as to the extent of interest conveyed, the court was in error in finding that it was a one-sixth interest. There must be allegation as well as proof. Alston v. Marshall, 112 Ala. 638, 20 So. 850; Junkins v. Lovelace, 72 Ala. 303; Gilchrist v. Shackelford, 72 Ala. 7. There was no evidence that John R. Estes ever owned or was in possession of the land or had any interest therein. The statement by complainant that Mrs. Klepper had a one-sixth interest in the land conveyed is pure matter of opinion. Anniston Co. v. Edmondson, 127 Ala. 445, 30 So. 61; McCreary v. Jackson Lbr. Co., 148 Ala. 247, 41 So. 822; Lecroix v. Malone, 157 Ala. 434, 47 So. 725. At the time of taking testimony in this case (April, 1940) Code 1923, § 6565, was still in force. Although no objection was made to incompetent testimony, neither the trial court nor the appellate court is entitled to consider it. Scott v. Scott, 215 Ala. 684, 112 So. 218; King v. Price, 212 Ala. 344, 102 So. 702. If the finding be true that respondent Oscar Case owned a one-sixth interest subject to lien in favor of complainant, the court should have decreed a sale for division under the cross-bill. Wood v. Barnett, 208 Ala. 295, 94 So. 338; Hines v. Chicago etc. Co., 115 Ala. 637, 22 So. 160; Burr v. Fox, 227 Ala. 543, 150 So. 911.
Scott Dawson, of Fort Payne, for appellee.
A bill having equity is good as against a general demurrer. Code 1940, Tit. 7, p. 1052, Rule 14; McNeal v. Patterson, 236 Ala. 50, 180 So. 773; Whiteman v. Taber, 203 Ala. 496, 83 So. 595. Testimony as to the interest of complainant's mother in the land was competent, even if it had been objected to. The most that could be said is, it was secondary. Cotton v. Cotton, 213 Ala. 336, 104 So. 650. Relief prayed by the cross-bill was properly denied. 21 C.J. 669.
A bill to foreclose a vendor's lien on real estate, with proper parties, averring facts from which a vendor's lien arose, that the purchase money notes recited in the deed are unpaid, and are owned by complainant, and sufficiently describing the lands as per the deed from the vendor made exhibit to the bill, contains equity.
A deed conveying "all the right, title and interest" of the grantor in the lands, discloses a vendor's lien on such interest in the lands as was owned by the grantor. A decree and sale by same description would pass such interest.
A decree for the judicial sale of an undivided interest in lands should, however, in the interest of all persons concerned, specify the interest to be sold. The bill should specify such interest. Otherwise it is subject to appropriate demurrer.
A ground of demurrer, reading: "The bill is vague and indefinite and does not apprize the defendants of what they must answer," is a general demurrer only, and is properly overruled when the bill contains equity. In answer to cross-bill complainant did define the interest to be sold as a one-sixth interest. The decree so ordered.
The deed described the lands by government numbers followed by this further identification: "All on the East side of Wills Creek in DeKalb County, Alabama and known as the John R. Estes land at Lebanon."
The grantor in the deed was Mrs. Rebecca Klepper. Complainant was her daughter, the owner of the purchase money notes by gift from her mother, the payee. In her deposition, complainant deposed:
"That Mrs. Rebecca Klepper was formerly Miss Rebecca Estes and that she was a sister of John R. Estes, who formerly resided in DeKalb County, Ala. The brothers and sisters of John R. Estes: Brothers — R. J. Estes, S. B. Estes, B. F. Estes, and the sisters were: Ellen Estes Merrick, Mary Estes Williams, and Rebecca Estes Klepper. Mrs. Rebecca Klepper had One-Sixth (1/6) interest in the lands conveyed."
Although not as full as should be, this testimony warranted an inference that Mrs. Klepper succeeded to a one-sixth interest as a sister of the former owner by descent or otherwise. In any event, the only material point was the interest passing by the deed to respondent, Oscar V. Case. Section 6565, Code of 1923, did not require the court to disregard evidence that this was a one-sixth interest because secondary or not the best evidence, no objection being interposed thereto. Cotton v. Cotton, 213 Ala. 336, 104 So. 650; Des Portes v. Hall et al., 238 Ala. 641, 645, 192 So. 899.
By new Equity Rule 120, (238 Ala. XLIV), Code 1940, tit. 7, appendix, such rules became effective January 1, 1940, but not to effect pending causes; with proviso, that the court could so apply them, in his discretion when no party was prejudiced thereby. Such was the instant case. The court was not bound by § 6565, Code of 1923.
The cross-bill by co-respondent, owner of the other undivided interests in the land seeking a sale for division could not serve to hinder or defeat the bill to foreclose the vendor's lien on the one-sixth interest. There was no error in proceeding to a decree of foreclosure on the original bill, reserving all other questions.
Affirmed.
GARDNER, C. J., FOSTER, and LIVINGSTON, JJ., concur.