Chastain v. Hames

SHAPPE, J.

— Whether a grantor of land has waived the lien which ordinarily attaches for unpaid purchase money in a question depending upon his intention. The presumption is in favor of the existence of the lien unless the grantor has manifested an intention to waive or abandon it. Sucli intention may appear from an express agreemnt or it may be inferred from attendant acts or circumstances. There are acts which are apparently inconsistent with the lien’s retention and which when they exist, will show presumptively its waiver. The comon case is' where the vendor takes other security, either on property or by a personal obligation whereon a third party becomes responsible. Usually the lien is not lost by taking the personal obligation of the vendee alone though it be such as to improve the vendor’s remedy. Pom. Eq. 1250; Sheppard v. Thompson, 85 Ala. 611. And this is so where the deed is at the vendee’s request made to a third party. — Davis v. Smith, 88 Ala. 596; Moore v. Worthy, 56 Ala. 163; Crompton v. Prince, 83 Ala. 246.

Except as to those acquiring interests without notice (lie lien is not affected by a mere recital of payment though it appear in the deed. — Bankhead v. Owen, 60 Ala. 157; Foster v. Trustee of the Atheneum, 3 Ala. 302; Kelly v. Karsner, 81 Ala. 500.

In having the arbitration with Chastain and taking bis personal obligation to abide the award, the complainant did not acquire an independent security for his debt. Those acts- and likewise the delivery of the deed to Lynch may indicate that complainant expected that payment of the award would follow and that resort to the enforcement of his lien would not be necessary but they do not show as a legal conclusion an abandonment of the lien. What particular weight should be given on final hearing to those acts as bearing on the complainant’s intention respecting the lien it is not our province in this appeal to say; but without other facts than those appearing upon the face of the bill we hold that no presumption is raised that the complainant ever waived or abandoned his lien. The bill contains equity for the enforcement, of the lien which is its main purpose, and this whether the balance due as purchase money is to be ascertained from the contract of sale or from the award. The question of whether the bill shows grounds for setting aside the award, is not raised by the demurrer which goes to the whole bill and there is no. demurrer to that part separately.

So far as here appears Lynch is a volunteer in the transaction holding the title which complainant had held, with notice of his equity and standing in no better position' for defense than his co-defendant. — Moore v. Worthy, suprcv.

The decre will be affirmed at appellant’s cost.