Prickett v. Sibert

BRTCKELL, C. J.

1. There was no error in allowing the amendment of the original bill, by striking out the allegation, that the notewas by the payee transferred by delivery, and the insertion of an allegation, corresponding to the facts, that it was transferred by indorsement in writing, involving the payee and maker in liability for its ultimate payment. Whether the original bill contained equity; whether it presented a case of which the court could take cognizance, entitling the complainant to .relief, is not a material inquiry. If it did not, supplying or cori’ecting its deficiencies was the proper office of an amendment. As has been often decided, the amendment of bills, correcting errors of omission or commission, is matter of right, co-extensive with the error, unless an entirely new case is made, or there is a radical departure from the cause of action stated in the original bill, or unless it is proposed to work an entire change of parties, plaintiff or defendant.—King v. Avery, 37 Ala. 169 ; Moore v. Alvis, 54 Ala. 356; Pitts v. Powledge, 56 Ala. 147.

2. Whether there were two sales of lands, and whether the note was given for the purchase-money of the lands, the subject of the first or of the second sale, is not now matter open for contestation, or which, whatever may have been the actual fact, can affect the rights of the parties. The note was given with full knowledge by the maker, that the purpose of the payee was its transfer to Hollingsworth & Ward. It was made for the precise amount that the payee was owing them, and to enable him to transfer it in payment of the debt. The maker also knew that the inducement moving them to accept the transfer was the representation, that the consideration of the note was the purchase-money of the entire tract or body of lands, bound by the lien of the vendor for its payment. In assurance of the fact, and of the truth of the representation, on its face the note recites, as its consideration, the purchase of the lands, and the conveyance of them by deed of even date with it. If before accepting the transfer, Hollingsworth & Ward, informing the maker that they were negotiating it, had inquired of him as to the consideration of the note, and he had made the statements which are embodied upon its face, there would be no doubt that he could not subsequently den}' or contradict them, in a controversy with the -transferees, or their privies, claiming to enforce alien on the lands for its payment. Declarations or admissions, deliberately made, are conclusive upon the parties making them, in all controversies involving their truth between him and the person whose conduct he may knowingly influence by them. It is not of importance, whether the declaration or admission is made innocently or fraudulently; whether in point of fact it is true or false; it is the fact, that another has been induced to act on it, and must suffer injury if its truth is gainsaid, that renders it conclusive.-^-1 Brick. Dig. 796, § 10. That the note was made the medium of communicating the assestion or representation of the fact and character of its consideration, can not vary the application of this principle. The representation was made in that form, not only that of it there should be permanent evidence, but also for the purpose of communicating it to the transferees, and to induce them to accept the transfer. It is of the same conclusive force that it would have been if communicated directly in answer to an inquiry by them, made before accepting the transfer.

3. The general rule is indisputable, that if lands are subject to mortgage, or to the lien of the vendor for the payment of the purchase-money, or to other paramount incumbrance, and are sold successively in different parcels to different persons, a court of equity, in decreeing a sale of them for the satisfaction of the mortgage, or the lien of the vendor, or in. charging them with the incumbrance, will pursue the inverse order of alienation, first, however, charging such of the lands as the vendee may retain, if he retains a part or parcel.—Cullum v. Erwin, 4 Ala. 452; P. & M. Bank v. Dundas, 10 Ala. 661; Mobile Marine Dock & Mut. Ins. Co. v. Huder, 35 Ala. 713. This is an equity of the several purchasers, and must be claimed and asserted by them. If not claimed and asserted, it is not obligatory upon the court, unless the rights of infants, or others not sui juris are involved, to mould its decrees so that the equity will be enforced. It may be, the court should have ordered a sale of the lands devised, which are in possession of the de-visee, in satisfaction of the decree, before resort was had to the lands which had been sold, or with which the deceased vendee bad parted in his life. But this was not claimed by the answers, nor was it otherwise asserted or drawn to the attention and consideration of the court. The answer of an adult defendant must put in issue all the facts upon which he relies in bar of the relief claimed, and of evidence outside of, or extrinsic to the issues, the court will not take notice, and can not make it the basis of a decree.

4. The release by Ward of the lien on a part of the lands is •not a fact upon which any of the parties relied in the court of chancery, as a pro tcmio exoneration of the lands claimed by them ; and its effect can not now be inquired into, without the risk of injustice to him. The practice is well settled, that questions, not jurisdictional, which are not made in the primary court, will not be considered in an appellate court.—1 Brick. Dig. 776, § 31. See Watts v. Burnett, 36 Ala. 340.

5. The judgment at law against the vendee on the note is conclusive of the rights of the parties — conclusive that, at the time of its rendition, the amount for which it was rendered was justly due from the defendant to the plaintiff.—Bobe v. Stickney, 36 Ala. 482. An unqualified transfer or assignment of the judgment would in equity have operated as a transfer of the lien on the land, and the assignee could have subjected the land to the payment of the judgment.—Griffin v. Camack, 36 Ala. 695; Kelly v. Payne, 18 Ala. 371. The note was merged, its existence was lost in the judgment, which, for most purposes, became the only, as it is the final and conclusive, evidence of the debt.—Cook v. Parham, 63 Ala. 456. Judgments, like other debts, if payment of them is forborne or delayed, bear interest—Ijams v. Rice, 17 Ala. 404. The chancellor did not err in accepting the judgment as the evidence of the debt, and in the computation of interest upon the principal sum for which it was rendered, instead of going behind it, re-opening -it, and computing interest upon the note.

We have examined the assignments of error, without finding any cause of reversal, and the decree must be affirmed.