
    Hubbard v. Buck.
    
      Bill in Eqwity to Enforce Vendor’s Lien on Land.
    
    1. W1ten vendor’s lien reserved. — In every sale and conveyance of land, where the purchase-money is not paid, though the deed may recite its payment, upon principles oí equity and good conscience the law presumes the reservation of the vendor’s lien, without any special contract to that effect.
    2. Same-; when not reserved. — The presumption of the reservation by the vendor, of his lien, may be overcome by the terms oí the contract of sale, or where the attendant circumstances oí the transaction satisfactorily show it was excluded, and that the vendor relied upon the personal credit oí the vendor, or other security was taken and relied upon by the vendor.
    Appeal from Mobile Chancery Court.
    Heard before the Hon. Wi. H. Tayloe.
    The facts of this case fully appear in the opinion of the Court.
    Pillans, Torrey & Hanaw, for appellants.
    1. The vendor’s lien is founded upon principles of good conscience which forbid that the purchaser should have and retain land for which he has not paid, but is a mere equitable presumption that may be rebutted, and may yield to other natural equities. Burgess v. Greene, 64 Ala. 509; Terry v. Keaton, 58 Ala. 667, 670.
    2. The presumption of the reservation of the lien does not arise where it satisfactorily appears from the dealings and transactions that it was the intention of the vendor to rely solely on the personal credit of the vendor. Carver v. Eads, 65 Ala. 190 ; Sims v. Nat. Bank, 73 Ala. 248 ; 2 Jones on Liens, 1064; Fox v. Frazer, 92 Ind. 265; Kelly v. Kars-ner, 81 Ala. 500. Citing also, on other points, Fiske v. Potter, 2 Abb. App. Dec. 138; 3 Pom. Equity, § 1257; 57 Ala. 560; 73 Ala. 446; 2 Stew. 479 ; Bigelow Estopp. 476, 443 ; Herman Estopp. § 841; 101 U. S. 578 ; Meachem Agcy, 167, 178 ; 33 Ala. 509; 78 Ala. 99 ; 68 Ala. 170 ; 10 Ala. 755.
    Faith & Ervin, for appellee,
    cited, Hightoiver v. Rigsby, 56 Ala. 128 ; Neiosome v. <Jollins, 43 Ála. 663; Foster v. Stcdlioorth, 62 Ala. 549 ; Wilson v. Wall, 34 Ala. 305 ; Lockwood v. Tate, 96 Ala. 353 ; Herring v. Skaggs, 73 Ala. 455 ; 2 Story’s Eq. Jur. § 1224; 2 Pom. Eq. Jur. § 805 ; Knowles v. Strut, 87 Ala. 361; Pounds v. Bicharás, 21 Ala, 426.
   COLEMAN, J.

John E. Buck, filed tbe present bill to enforce a vendor’s lien upon certain land described in tbe bill of complaint. Jobn E. Buck, and William J. Buck, owned tbe lands in fee as tenants in. common and by deed absolute in its terms dated Nov. 17tb, 1890. John E. Buck, conveyed tbe land to bis co-tenant William J. Buck, and in tbe deed acknowledged payment of tbe consideration. On tbe 14tb of November, 1890, W. Otis McMabon and William J. Buck, copartners • doing business as McMabon & Buck, executed a mortgage upon tbe lands to appellants, Hubbard Bros., tbe consideration of tbe mortgage being tbe extension of a past debt due for twenty seven hundred dollars and a casb loan of fifteen hundred dollars. At tbe time of tbe execution of tbe mortgage, Hubbard Bros, bad knowledge that tbe legal title to a half interest in tbe lands, was in Jobn E. Buck tbe complainant.

On tbe 28th of November, 1890, tbe grantee William J. Buck, conveyed tbe same lands, in fee to tbe copartnership of McMabon & Buck. McMabon knew that bis co-partner William J. Buck, made no payment of tbe purchase-money for tbe half interest in the land to bis vendor Jobn E. Buck, tbe complainant. Whatever. interest McMabon & Buck, held in tbe land by virtue of tbe conveyance from Jobn E. Buck, to William J. Buck and from William J. Buck, to tbe copartnership of McMahon & Buck, enured to Hubbard Bros. under and by virtue of tbe mortgage executed to Hubbard Bros. on tbe 14th of November, 1890. Chapman v. Abraham, 61 Ala. 114. Tbe evidence satisfactorily shows that when Jobn E. Buck, executed tbe deed to William J. Buck, be bad no knowledge that Buck & McMahon, bad mortgaged tbe land to Hubbard Bros. Tbe sole question then is, whether John E. Buck, waived tbe vendor’s lien, when be conveyed the land to bis brother William J. Buck. There is no material conflict in tbe evidence, upon which tbe determination of this question depends. In every sale and conveyance of lands when tbe purchase-money is not paid, although tbe deed may recite tbe payment of tbe purchase-money, without any special contract to that effect, upon principles of equity and good conscience tbe law presumes tbe reservation of tbe vendor’s lien, unless tbe terms of tbe contract of sale, or tbe attendant circumstances of tbe transaction, satisfactorily show it was purposely excluded, and tbe vendor relied upon tbe personal credit of tbe vendee, or other security was taken and relied upon by tbe vendor.

Tbe testimony of tbe vendor John E. Buck, and his ven-dee, William J. Buck, satisfactorily show tbe following facts, which led to the conveyance of tbe deed to William J. Buck. J. Otis McMahon, and William J. Buck, formed tbe copartnership of McMahon & Buck, tbe purpose of which was to engage in tbe lumber business. McMahon agreed to put in the firm eight thousand dollars in cash, and William J. Buck, agreed to put in four thousand acres of land, at a valuation of two dollars per acre, John E. Buck, knew .of this copartnership and its terms and the undertaking of his brother to put in the four thousand acres of land. William J. Buck, testifies that his brother John E. Buck, had promised to make him a deed in fee to the land, whenever he would request it, in order to enable him to' comply with his agreement with McMahon, to put in the firm four thousand acres of land. William J. Buck, further testifies that his confidence in his ability to get this deed from John E. Buck, at any time, was his reason for mortgaging the lands to Hubbard Bros, absolutely, before he received the conveyance from his brother. He says that upon his promise to pay his brother for the land at the valuation as put into the firm of McMahon & Buck, his brother agreed to let him treat the land as his own. “We treated the land as assets of McMahon & Buck, in making the mortgage to Hubbard Bros.” “The land was put in as my contribution of capital to the firm of McMahon & Buck.”

John E. Buck, testifies as follows: “I did fully know when I signed the deed of my half interest in the lands described in the bill, that I did so to enable William J. Buck, to keep good his promise to his partner McMahon, to put the whole of said lands into the firm of McMahon & Buck, as a part of his contribution to the firm.” “I made the deed to W. J. Buck, without any knowledge of what he anticipated, except that he wanted to make deed of said land to McMahon & Buck.” ... “I knew nothing of a vendor’s .lien was reserved or intended to be reserved as against the firm of McMahon & Buck. If McMahon agreed to put in eight thousand dollars in cash, and William J. Buck, four thousand acres of land at two dollars per acre, as an equivalent contribution, and John E. Buck, conveyed this land to William J. Buck, “to enable him to keep good his promise to his partner, McMahon, and that he might make the deed to McMahon & Buck, as a part of his contribution to the firm,” such a purpose is utterly inconsistent with a reservation of a vendor's lien upon the land. He could not enforce tbe lien against McMabon & Buck. Their mortgagees Hubbard Bros, succeeded to whatever right they possessed and owned. Testing the question by complainants’ testimony, and that of his brother the vendor, leaving out altogether the evidence of McMahon, which corroborates them in all respects as far as admissible and there is but one legitimate conclusion, and that is, that complainant relied entirely upon the credit of his brother, when he conveyed to him the land. This is the effect of the direct testimony of William J. Buck, and complainant. The court erred in holding that complainant had not waived his lien and that he was entitled to a vendor’s lien upon the land.—Carver v. Eads, 65 Ala. 190; Jackson v. Stanly, 87 Ala. 270; Crompton v. Prince, 83 Ala. 246; Kelly v. Karsner, 81 Ala. 500.

The decree of the chancellor is reversed, and a decree will be here rendered, dismissing complainant’s bill.

Reversed and rendered.  