So far as Mrs. Robinson’s bill seeks to sell, in payment of the purchase-money, that interest in the land which James P. Robinson purchased under the agreement of *505November 22d, 1869, her equity is superior to that of Jones & DePras. The title was retained in the vendors, as security for the purchase-money; and as to this interest, the plea of purchaser without notice is unavailing. — Bankhead v. Owen, 60 Ala. 457, and authorities cited. This includes an undivided fourffifths interest in the lands, to which James P. Robinson has never had any title. If J. W. Jones & Oo. had no notice of the defect in Robinson’s title, when they accepted his mortgage, it was their own fault. If they had looked into the chain of title, they would have found no evidence that it was .in James P. Robinson.
When William Robinson died, owning the lands in controversy, the title descended to his heirs, five in number. James P. Robinson was one of the five, and, by his father’s death, the title to one undivided fifth of the lands vested in him eo instanti. Any proper investigation of the title would have led to this discovery. That interest being already in him, he did not purchase it when he purchased the remaining four-fifths. As to that interest, Mrs. Robinson can assert no vendor’s lien. Norman v. Harrington, 62 Ala. 107. If she has any lien on that fifth interest, it is by virtue of the agreement of November 22, 1869. That was a private agreement between the parties interested in Robinson’s estate, of which J. W. Jones & Oo. are not shown to have had any notice, actual or constructive. It follows that that firm, if they stand in the attitude of purchasers, acquired by their mortgage a lien on this undivided fifth interest, which is paramount to that of Mrs. Robinson. Wells v. Norman, 38 Ala. 125 ; Chandler v. Tardy, 58 Ala. 150.
The indebtedness of James P. Robinson to Joel W. Jones & Co. is evidenced by two notes ; one for fifteen hundred and twenty-five dollars, dated March 2, 1876, and due November 20th, 1876. This was for supplies advanced, and agreed to be advanced during that year. The other was for over six thousand dollars, dated March 13, 1876, and due December 1, 1876. The mortgage bears date March 28, 1876. All these dates, it will be observed, are different. It is, however, averred and proved, that Joel W. Jones & Oo. agreed to make to Robinson advances for that year, and, taking his note therefor, it was agreed that the said mortgage should be afterwards made to secure its payment. The larger note was but a renewal of an antecedent debt. As to this, however, it is shown that it was agreed to be extended until the December after-wards, on the like agreement, that its payment should be secured by the said mortgage. This, when the mortgage was given pursuant to agreement, constituted them purchasers as to both notes. — Sweeney v. Bixler, 69 Ala. 539; M. & C. P. *506R. R. Co. v. Talman, 15 Ala. 472; Kirksey v. Means, 42 Ala. 426.
It is contended for appellee, Mrs. Bobinson, that James P. Bobinson had received of the personal assets of the estate largely more than his share ; and that she, the administratrix, has a right to be reimbursed out of this fifth interest in the land, for such over-payment.— Goodman v. Benham, 16 Ala. 625; Brown v. Lang, 14 Ala. 719. It is a sufficient answer to this, that the pleadings do not raise the question; and if it were raised, we find no facts in the record to call for its application. James P. Bobinson’s deficiency is not for over-advancements, or rather over-payments made to him as a distributee. It is for the unpaid balance of the large purchase of lands, made by him in the family agreement of November 22, 1869.
It is further contended for appellee, that inasmuch as Jones & De Pras filed no separate cross-bill, but simply converted their answer into a cross-bill; and inasmuch as they pray relief against their co-defendant, James P. Bobinson, they can obtain no relief under such pleading. If proper objection had been taken at the proper time, or if Mrs. Bobinson had not waived the irregularity by pleading to it, or answering it as a cross-bill, this objection would be well taken. We hold, however, that by answering it, without objecting to it in the court below, all objection to the form of its presentation must be considered as waived. — Davis v. Cook, 65 Ala. 617; Gilman v. N. O. & S. R. R. Co., 72 Ala. 566.
The decree of the chancellor must be reversed, and a decree here rendered in accordance with the principles declared above. It is therefore ordered and decreed that, of the proceeds of the land when sold, four-fifths will be paid to Mrs. Caroline P. Bobinson, administratrix, until her entire claim is paid, and one-fifth to Jones & De Pras, surviving partners of Joel W. Jones & Co. Should there be a surplus left after paying Mrs. C. P. Bobinson in full out of the four-fifths, that, too, will be paid to Jones & De Pras, after reimbursing to Mrs. Bobinson any costs she may have to pay on proceedings in the court below, but not to include any costs of appeal.
Let the costs of the original and cross suits, incurred in the court below, be paid, one third by Jones & De Pras, and two thirds by James P. Bobinson. If not paid by him, then by Caroline P. Bobinson.
Beversed and rendered.