
    Arnett v. Handley, et al.
    
    
      Vendor’s Lien.
    
    (Decided December 18, 1913.
    64 South. 66.)
    1. Vendor md Purchaser; Bona Fide Purchaser; Note.- — Where the husband of respondent purchased land for value and without notice that the grantor was still indebted for the purchase money, and had the deed made out in respondent’s name, respondent took the land free from any lien which the vendor of her husband’s grantor might have had.
    2. Same; Lien; Enforcement. — Where land is sold and notes taken in payment, and the purchaser sells to a third person, the vendor has the burden of showing that the grantee of the purchaser, who took for value, either had actual notice of the lien or of some facts sufficient to put him upon inquiry in order to enforce his lien against the land.
    Appeal from Clay Chancery Court.
    Heard before Hon. W. W. Whiteside.
    Bill by W. P. Arnett against Laura P. Handley and others, to enforce a vendor’s lien. From a decree for respondents, complainant appeals.
    Affirmed.
    Whatley & Cornelius, for appellant.
    The respondent cannot be a bona fide purchaser for value without notice because she did not pay value for the lands.— Craft v. Russell, 67 Ala. 9. Her husband cannot claim to be such because he did not acquire the legal title to the land.- — Thames v. Rembert, 63 Ala. 560; L. & N. v. Boykin, 76 Ala. 560; Craft v. Russell, supra. The party who has the prior equity in point of time is entitled to a like priority in point of right. — Fash v. Ravesies, 32 Ala. 451; 11 A. & E. Enc. of Law, 188 et seq.; 16 Cyc. 139, and authorities supra. The doctrine of protection of bona fide purchaser has never been extended to a volunteer.- — 63 Ala. 57; Beale v. McGhee, 57 Ala. 438; 5 S-. & P. 215; Stone v. Hale, 17 Ala. 557.
    
      W. B. Harrison, and Walter S. Smith, for appellee.
    The burden was on complainant to show actual or constructive notice of the equity or lien. — Hodges v. Winston, 94 Ala. 578; Bnellgrove v. Evans, 165 Ala. 324; First Nat. Bank v. Sproull, 105 Ala. 280; Winn v. Bossette, 66 Ala. 520. Under the facts Mrs. Handley was a bona fide purchaser for value. — Alston v. Marshall, 112 Ala. 638; 6 Mayf. 87; 20 A. & E. Ann. cases, 1124.
   SAYRE, J.

Arnett filed this bill against Laura A. Handley to enforce a vendor’s lien on certain lands in Clay county known as the “Lake Place.” One Harlan was made a party defendant also, with a prayer for a personal judgment over against him in the event a sale of the land should not satisfy complainant’s demand, and he permitted a decree pro confesso to be taken against himself. Complainant had sold and conveyed the place to one Carpenter, taking notes for a part of the purchase money. Carpenter later sold and conveyed the place to Harlan, taking notes for a part of the purchase money, and had then transferred and assigned these notes to complainant in discharge of his debt. Harlan then sold and conveyed the place to the defendant Laura A. Handley for a cash consideration presently paid.

We have stated Mrs. Handley’s connection with the transaction substantially as it is made to appear in complainant’s bill. In exact fact, the transaction, differing in form, though not in legal effect, from complainant’s statement of it, was this: Defendant’s husband, J. T. Handley, acquired the land upon Avhich a lien is sought in exchange for a tract of land he owned, deeds back and forth being executed contemporaneously, the deed from Harlan being made to defendant on her husband’s request without any valuable consideration moving from her. It is agreed between the parties that Mrs. Handley had no knowledge or notice of complainant’s alleged lien. She defended on the ground that her husband was a bona fide purchaser for value, and this defense prevailed in the chancery court.

Without going into a statement of the familiar law of such a situation, though it has been rather extensively argued in the briefs of counsel, we think it may be safely said that the decree below proceeded upon correct principle if in fact J. T. Handley was not chargeable with knowledge or notice of complainant’s claim at the time of the deed to defendant.

Thát Handley gave full value for the land he bought we think there can be no doubt. Complainant, desiring to avoid the effect of the case thus presented, assumed the burden of proving that, before the exchange of lands,. Handley had actual notice of the equity or lien now asserted by complainant, or of some fact or circumstance sufficient to put a man of ordinary prudence on inquiry, which, if followed up, would have discovered the incumbrance alleged. — Hodges v. Winston, 94 Ala. 578, 10 South. 535. Thus the case presents a pure question of fact. Complainant does not pretend to any knowledge in respect to this fhct. He only knows that he has not been paid a part of. the promised purchase money for which he parted with his land. The other witnesses are in flat conflict. We suppose that no judicial mind, accustomed to the consideration of the uncertainties and infirmities of human testimony, could determine a case like that here presented in agreement with the contention of either party without a fear that a contrary conclusion might possibly express the truth. On due consideration, however, we are inclined to think defendant has shown the stronger hand on the single issue which must determine the result. At least; we are satisfied that complainant has not sustained the burden of proof put upon him by the law in the circumstances stated.

It would be of no possible service to state the various, reflections which arise out of the case and tend to support or impeach the witnesses on either side. It must suffice to state our conclusion that a proper decree was rendered in the court below.

Affirmed.

Anderson, McClellan, and Somerville, JJ., concur.  