Opinion
7 Div. 73.
March 10, 1932.
Appeal from Circuit Court, Etowah County; O. A. Steele, Judge.
Culli, Hunt Culli, of Gadsen, for appellants.
Where a vendor of land executes a conveyance and takes personal collateral security binding others as well as the vendee, as a note with surety, no lien exists on the land itself. Foster v. Trustees, 3 Ala. 302; Jacobs v. Goodwater Graph. Co., 205 Ala. 112, 87 So. 363; Hammett v. Stricklin, 99 Ala. 616, 13 So. 573; Kinney v. Ensminger, 94 Ala. 536, 10 So. 143. Legal conclusions alone should not be pleaded. Sloss-S. S. I. Co. v. Smith, 166 Ala. 437, 52 So. 38. A demurrer to a bill confesses only matters of fact well pleaded, and does not admit conclusions of law or fact. Riles v. Coston-Riles Lbr. Co., 208 Ala. 508, 95 So. 43.
Goodhue Lusk, of Gadsen, for appellee.
The question of retention or waiver of the vendor's lien is a question of fact, and it was not necessary for complainant to aver in detail the various evidential facts in support of the further collective fact that a vendor's lien was retained. 21 C. J. 393; Christian v. Amer. F. L. M. Co., 92 Ala. 130, 9 So. 219; Amer. Book Co. v. State, 216 Ala. 367, 113 So. 592; Orendorff v. Tallman, 90 Ala. 441, 7 So. 821; Cullman Prop. Co. v. H. H. Hitt Lbr. Co., 201 Ala. 150, 77 So. 574. While the taking of personal security for unpaid purchase money, nothing else to the contrary being considered, presumptively waives the vendors lien, if it appears that the conveyance actually reserved a lien, the taking of security does not constitute a waiver. The bill clearly alleges the reservation of a vendor's lien.
The rule is here well established that the taking of personal security for the purchase price of land is prima facie a waiver of the vendor's lien. Foster v. Trustees of Athenaeum 3 Ala. 302; Kinney v. Ensminger, 94 Ala. 536, 10 So. 143; Jacobs v. Goodwater Graphite Co., 205 Ala. 112, 87 So. 363. But the question is one of intention, and subject to rebuttal. Donegan's Adm'r v. Hentz, 70 Ala. 437.
In the instant case the prima facie case of waiver by the acceptance of the vendee's note, with surety thereon, is rebutted by the express language of paragraph 5 of the bill to the effect that the deed recited the unpaid portion of the purchase price was secured by a vendor's lien. If the deed so reads, as alleged, clearly the prima facie case of waiver is overcome. Authorities, supra.
This is averred as a fact, and not subject to the objection that it is but the conclusion of the pleader. Orendorff v. Tallman, 90 Ala. 441, 7 So. 821; Cullman Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574; American Book Co. v. State, 216 Ala. 367, 113 So. 592.
The demurrer to the bill was properly overruled, and the decree will accordingly be here affirmed.
Affirmed.
ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.