
    Farmer v. Simpson.
    Where tho plaintiff sued on a promissory note of the defondant, alleging that the note was given iu’part for the purchase of land, to convey which tho plaintiff bad given tho defend ant his bond and prayed for an enforcement of his vendor’s lion by a sale of tho land discharge the noto: Held, That it was not competent for tho plaintiff to prove the sale by parol evidence in the first instance; that ho should have notified tho defendant to produce tho bond, and if he had failed to produce it or if it liad been shown to bo lost or destroyed ho might then have proved by parol that the note was given for tho purchase-money of tho land.
    Although a judgment against a garnishee which has'not been satisfied is not a complete defense, pro tanto, against the claim of his original creditor, yet sucli judgment may be pleaded for the purpose of obtaining protection against being required to pay the same debt twice. (Note 53.)
    Where a judgment was obtained against the vendee, as garnishee by a creditor of tho vendor, and execution was levied upon the land: Held, That as between tho vendor and vendee tho former did not waive his lien by bidding at the sale.
    A homestead is nob acquired until the title to the land on which such homestead is established is acquired, or at any rate until the party is in condition to demand title; and all liens acquired before the homestead has been established must be raised, or it will be subject to a forced sale for the satisfaction of such liens. (.Note 5G.)
    Error from Rusk. This suit was brought by the defendant in error on a note of hand, a part of the consideration of a sale of land by Simpson to Farmer, and praying to enforce the vendor’s lien on the 'land by a sale of the land, to satisfy the note. The plaintiff alleged that he had given the defendant a bond for title. There was another suit pending at the same time between the same parties for enforcing the vendor’s lien on the same land, in satisfaction of a judgment previously obtained by Simpson against Farmer, on two other notes given by Farmer, which, with the one.sued on, constituted the amount for which the land had been sold. The two suits were consolidated. The defendant answered by a general denial of the truth of the petition, and further, that a judgment had been obtained against Simpson, at the suit of one Austin, for two hundred and thirty-six dollars sixty-six cents, and for eighty-two dollars and eighty-eight cents, costs, in May, 1840; that execution had been sued out on that judgment and had been returned no property found; that Austin had then garnisheed the defendant, Farmer, as the debtor of Simpson; and on his answer j udgment had gone against him in favor of Austin for his judgment, debt, and costs, amounting to four hundred and fifty dollars, on which judgment execution issued and was levied on the land purchased by Farmer from Simpson; that it was offered for sale and hid off by Simpson at live hundred dollars, but that he failed to make payment, which appeared by the sheriff’s return, and further, pleaded a waiver of the lien of the vendor by bidding at the sale as mentioned at the former xffea, and that the homestead of his family was on the land on which the lien was attempted to be enforced, and insisted on its exemption from forced sale.
    To the two pleas setting up the judgment on the garnishment and the waiver of tile lien of tho vendor an exception was taken by die plaintiff and sustained by the court. There was a verdict for the plaintiff, on which tile court entered a judgment and decree in substance as follows : that the plaintiff’s exception to the two last pleas of tho defendant be sustained, and that the land be sold in satisfaction of the plaintiff’s former judgment and also in satisfaction of the judgment on the note sued on in this suit.
    There was a hill of exception, signed by die presiding judge at the request of the defendant, which, by the agreement of the counsel, as appeared from the record, was to be taken as a statement of the facts. It showed that the note sued on was produced by the plaintiff; that the plaiutiff then proved by the sheriff that when he served the writ on the defendant, lie, tlie defendant, said tlie note sued on in the writ was a part of tlie purchase-money for tlie land he, tlie defendant, then lived on. The defendant objected to tlie reading of the note and to the proof made by the sheriff, but the objections were overruled. It was also proven by the evidence of a witness that the laud tiie witness lived on was tlie same described in the plaintiff’s petition as the land sold by tlie plaintiff to the defendant. The plaintiff proved by another witness that the defendant admitted to him that the notes on which the judgment hail been rendered in the previous suit were given for the land on which'defendant lived. Objected to by the defendant. Objection overruled. The plaintiff also gave in evidence the judgment obtained by him against the defendant, Fanner. The defendant requested the court to charge'the jury that the evidence as stated was insufficient to authorize them to find the land described in the plaintiff’s petition, subject to the lien alleged, and that they must find for tiie defendant; which charge the court declined to give, hut charged the jury that if they believed the evidence, it was sufficient to authorize them to find the land subject to a forced sale. To the refusal to give the charge asked and to tlie charge giveu tlie defendant excepted.
    
      W. W. Morris, for plaintiff in error.
    I. A seizure by the sheriff of personal property of value sufficient is a satisfaction of the execution. (Webb v. Burn pass, 9 Ala. R., 201; Campbell v. Spence, 4 Id.. 5-13; Young v. Read, 3 Yerg. It., 298.) It is no answer to say that Simpson failed to comply with the terms of bis bid. Farmer cannot be damnified by the default of Simpson. (Dali. Dig., 91.) Simpson being grossly in default can claim nothing. The sheriff being in default is'liable to Austin to the amouut of his judgment, it being satisfied.
    II. The plaintiff’s right is attacked on another ground. The third plea alleges a waiver of his lien. This may exist without a satisfaction of the debt. He claims in virtue of a general lien, which is defined to he neither jus in re. nor jus ad rem, hut a mere right to charge the land to the extent of 'his debt. This right is subject to be waived or lost by the laches of tlie party or by security on tiie claim. (Equity Dig., vol. 2, p. 201, sec. 15; Jackson, ex. demi, v. Speuce, 13 Johns. R., 533.) One having a lien wiio stands by and silently permits tlie subject-matter of his claim to be sold thereby waives liis right. How much stronger is the case at bar, Simpson himself attending the sale and actually purchasing tlie property relying on the sheriff’s tille for his demand? (Equity Dig., vol. 2, p. 201, see. 15.) Tiie lien being waived or satisfied lets in the homestead claim to tiie extent of suoh bid or satisfaction. Simpson’s lieu is merged in his purchase. (2 Stark Ev., 415.)
    III. Tlie bill of exceptions discloses error. To enforce the vendor’s lien for the purchase-money a contract must be proved within tiie statute of frauds. A contract is the very foundation of the lien. The note and judgment were not sufficient evidence of such contract. Tlie rule is, tlie writing must, in itself show tlie terms of tlie contract. (Sugd. on Vend., 59.) Parol admissions cannot be received as evidence of that which can only legally exist in writing. The court erred in receiving such evidence. (1 G-rcenl. Ev., sec. 96.) It follows that the court erred in the charge given and tlie one refused. To sustain tlie plaintiff’s lien would open the door for fraud and oppression — by collusion first procuring a sale by the sheriff subject to the lien, then enforce tlie lien after the lamí had been incumbered by the sheriff’s sale. (Reed v. Pruyn, 7 Johns. R., 428.)
    
      W. B. Turner, for defendant in error, cited 4 Kent Comm., 251; 1 Tex. R., 326.
   Lipscomb', J.

The plaintiff in error assigns the following errors, on which he claims a reversal of the judgment of the court hclow :

1st. In sustaining exceptionsto the defendant’s pleas.

2d. In permitting the promissory note alleged to be given for the land to go to the jury as full proof of a contract for laud as required by the statute of frauds?

3d. In permitting oral testimony of facts, which must, legally, exist in writing.

, 4th. In declining to give the charge asked, and in giving the charge excepted to by the defendant’s counsel.

We do not propose to consider the errors assigned in the order in which they have been presented, but will examine the second, third, and fourth, together, as they all relate to the parol evidence received on the trial of the case hn.be court below. It appears from the record that there was no other evidence of a contract of sale of the laud from Simpson to Farmer but parol proof. There was no written evidence of the contract of sale produced, nor its existence shown, and its non-production accounted, for. The object in part sought in the suit was the enforcement of the vendor’s lien on the land. The lien, in such cases, is an incident growing out of the sale and dependent on it. If there lias been no sale, there could be no lien accruing; and if there had been a sale, it must be proven; and any other but written evidence of such sale would not be admissible under the statute of frauds. (Hart. Dig., art. 1431.) If the bond to make title had been in evidence by its production, or its contents admitted or proven, in the event of the defendant failing on- notice to produce it, or had it been lost or destroyed, then it would liave been competent for the plaintiff to have proved by parol that the note was given for the purchase-money of the land. The court below erred then in permitting tiie promissory note and the parol evidence of the sale of the land to go to the jury as sufficient evidence of such sale.

The only other error assigned to be considered is the rejection of two of the pleas offered by the defendant in the court below. The first of the rejected pleas presented the judgment against the defendant in the garnishee process as the debtor of the plaintiff at the suit of Austin. That this judgment was not a complete defense to the action, is doubtless true; but if it had been paid by the defendant it would have entitled him to a credit for the amount so paid, and it would liave been equivalent to a payment to the plaintiff of so much. But even before satisfaction of the judgment on the garnishment it was well pleaded, if not as a full defense, yet it was necessary to the defendant’s protection and security in the final decree. The judgment against the garnishee, so long as it remained unsatisfied, was no bar to Austin’s making his money out of the plaintiff on his judgment against him, and therefore the defendant was not entitled to have the credit against Simpson, the plaintiff. But his position was such as entitled him to protection against having two judgments in full effect and operation against him for the same demand's. If he satisfied both, it would be paying a part of the same debt twice; and such is the condition the judgment and 'decree of the court below has left him in. Simpson, the plaintiff, lias a judgment and a decree of sale against him for the full amount of the debt, whilst there is an unsatisfied judgment against him in favor of Austin for a part of the same debt. The decree should liave protected the defendant Farmer, by decreeing that the proceeds of the land to be sold should bo first applied to the payment of Austin’s" judgment: that after that, was satisfied, the balance to the payment of the sum diie to the plaintiff Simpson, after deducting from Simpson’s demand the amount paid to Austin.

' The second plea of the defendant, rejected by the court, was, that “ the conduct of tiie plaintiff in becoming a bidder at the sale, when the land on which lie claims a vendor’s lien was offered for sálelo satisfy Austin’s judgment. amounted to a waiver of tiie lien on the laud.” If tiie judgment Austin liad against the defendant Farmer liad not been based on the one ha had against Simpson, but on the defendant’s own individual and personal liability, and a third person, not knowing the existence of Simpson’s lien on the land as vendor, had purchased, the fact that Simpson, the vendor, liad bid at the sale without making it known that he had a lien as vendor on the laud, in a contest between the purchaser and Simpson, it might well have been contended that the lien had been lost. But it is not perceived in what possible form the defendant could set up a waiver of the lien. Simpson,' no doubt, became a bidder under the impression that if the land should be sold at a sacrifice he would have no other means to collect the balance of his debt from the defendant Farmer, and for his bidding off the land and not paying his bid. he ought to be held as a security that the land should sell for as much as his bid ■ at a second sale, and such would have been our direction had we not perceived from the record that the bid would not much, if any, exceed the amount to be paid to Austin before anything could be applied to pay the balance due to himself from the defendant Farmer. If. Simpson, however, had paid bis bid, the land would have been gone from the defendant Farmer, and only live hundred dollars of the debt to Simpson paid. He therefore has no right to complain if the land should be ordered to a second sale, when it is likely, under the advance in the price of land, it will sell for a great deal more than the amount bid at the former attempt to sell it.

Note 55.—Westmoreland v. Miller, 8 T., 168; Miller v. Taylor, 14 T., 538; Iglehart v. Moore, 21 T., 501.

Note50.—Shepperd v. White, 11 T., 346; Monroe v. Buchanan, 27 T., 241; McCreery v. Fortson, 35 T., 641; Burford v. Rosenfield, 37 T., 42; Batts & Dean v. Scott, 37 T., 59.

But it was contended that the land having- been levied on and bid off, although not paid for, was equivalent to a sale, and as the sheriff was in default, and Simpson in default, and Austin had not prosecuted his claim, that the land thereby being freed from all previous liens, the homestead would he protected from a forced sale. We cannot perceive the strength of such reasoning. If Austin had insisted on the payment by the sheriff of his debt, and it should be held that lie was liable to him for it in consequence of his not sidling the land, it would not have placed the defendant in a better condition. The land would not revert to him, but it would inure to the sheriff after paying the amount bid. Austin, however, is not before the court asking anything, and his claim would not have been noticed at all if it had not become necessary to do so for the protection of Farmer. The issue raised on the alleged exemption of the homestead from a forced salo was submitted to a jury, and they found the homestead subject to a forced sale. From the facts stated we have no reason to disturb their verdict. A homestead is not acquired within the meaning of the law until title to the land on which such homestead is established lias been acquired, or at any rate until the party is in condition to demand title; and all liens acquired before the homestead has been established must be raised, or it will be subject to a forced sale for satisfaction of such liens. The claimant oE the homestead had no title, find conld not demand title under the bond until his vendor liad been paid. The judgment must be reversed for the errors previously noticed, and the cause remanded.

Judgment reversed.  