Opinion
7 Div. 620.
April 22, 1926. Rehearing Denied May 20, 1926.
Appeal from Circuit Court, Etowah County; W. J. Martin, Judge.
Goodhue Lusk, of Gadsden, for appellants.
No vendor's lien attaches and remains on the minor's interest to secure payment of the balance of the purchase money owing to the adult tenants in common. Code 1923, § 9357; Avery v. Clark, 87 Cal. 619, 25 P. 919, 22 Am. St. Rep. 272; Jones v. Laird (Ala. Sup.) 42 So. 26; Bank of Florala v. Smith, 11 Ala. App. 358, 66 So. 832; Bankhead v. Owen, 60 Ala. 457; 37 C. J. 312; 17 R. C. L. 603; Jackson v. Rutherford, 73 Ala. 155; McCurdy v. Middleton, 82 Ala. 131, 2 So. 721; Rogers v. Sou. Calif. Co., 159 Cal. 735, 115 P. 934, 35 L.R.A. (N.S.) 543. The record of the proceeding in the probate court, ascertaining that the purchase price of the interest of the minor has been paid, estops the minor and any one claiming under her from denying such purchase price was paid and from asserting a vendor's lien on such interest. 34 C. J. 990.
Culli, Hunt Culli, of Gadsden, for appellees.
The sale of the lot in 1920 was a joint sale of the entire interest and for a lump sum. The notes for deferred payments were secured by a vendor's lien on the entire lot. The guardian was not authorized to make a sale of only the minor's interest in the lot. Code 1923, § 9357; Code 1907, § 5253; Van Houtan v. Black, 191 Ala. 173, 67 So. 1008. By transfer of the notes the right to enforce a vendor's lien upon the entire interest inured to Christopher. Code 1907, § 5160; Code 1923, § 9263; Dowling v. McCall, 124 Ala. 633, 26 So. 959; Crampton v. Prince, 83 Ala. 246, 3 So. 519, 3 Am. St. Rep. 718; Woodall v. Kelly, 85 Ala. 368, 5 So. 164, 7 Am. St. Rep. 57; McLean v. Smith, 108 Ala. 533, 18 So. 662. Appellants, judgment creditors, have no higher right than their debtor, Hood, would have. Nunnelly v. Barnes, 139 Ala. 657, 36 So. 763; Owen v. Bankhead, 76 Ala. 143; Clements v. Motley, 120 Ala. 575, 24 So. 947.
Where the purchase money for land has been paid there can be no vendor's lien. "To maintain a bill to enforce a vendor's lien, there must be a debt due to the complainant, contracted in the purchase of the land, still unpaid, and which the purchaser, either at the time, or at some prior date, was liable to pay as a primary debtor, without condition." Scheerer v. Agee, 106 Ala. 150, 17 So. 610, and cases cited. While the deed was executed to Hood by all of the vendors, including the minor, and the two notes were payable to the vendors, including the minor, it was understood between all the parties that $1,000 of the cash paid was the value of the interest of the minor, and was to be used in the procurement of a title through the confirmation of the probate court. And in the proceedings it was shown that the share of the minor had been paid in cash, and a deed was ordered to be made to the purchaser, which was separate and distinct from the first deed, which was not binding as to the interest of the minor. The minor, having been paid in cash for her interest in the land, had no interest in the notes given for the unpaid purchase money, notwithstanding she was one of the payees. She may have had a joint legal title, but she has no equitable interest in the notes. The entire transaction indicates that she was not to be paid unconditionally, and that she has been paid in full for her interest in the land since the happening of the condition. We also think that the entire transaction shows a severance or separation of the joint interest in so far as the minor was concerned, and that no vendor's lien existed on her undivided one-fourth interest in the land, and that the trial court erred in declaring and enforcing a vendor's lien upon all of the land as only an undivided three-fourths interest was subject to said lien. The decree of the circuit court is, therefore, corrected and affirmed, and the cost of this appeal is taxed to the appellee Christopher.
Corrected and affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.