BURNS vs. TAYLOR et al., 23 Ala. 255

PHELAN, J. It is objected that the testimony of John Rowe, in behalf of his co-defendant, Job Taylor Sr., should not have been received. We see no good ground for the objection. He was only a formal party, as husband of one of the sisters of Job Taylor Jr., who was made a party defendant as heir at law of her brother, the object of the bill being to divest the title to lands in which he once had an interest.

The witness is called to support the title of Job Taylor Sr. to the lands in question, and is, therefore, called to testify against his interest as husband to one of the heirs of Job Taylor Jr., under any aspect of the case. Even if this were not so, there was no interest which would disqualify him; for both the bill and answer show that Job Taylor Jr. died wholly insolvent. But, it is said, he took so active a

part in the defence, that he made himself liable for costs, and that this will render him incompetent as a witness.

When a party defendant to a bill, who, from the faco of tho proceedings, would appear to have no real interest, makes a long and formal answer, and sets up matters that do not properly concern him as a defence to the bill, he raises a strong suspicion that he is, in fact, interested in the event of the suit, although that interest may not appear; and courts have sometimes held that the testimony of such a witness may be rejected, and place it upon the ground, that he thereby makes himself liable for costs, if the case goes for the complainant.

We find the rule so stated in the opinion of the court, in the-case of The Heirs of Holman v. The Bank of Norfolk, 12 Ala. 405. But, in that case, there was no necessity so to decide, for the party defendant, who was made a witness, was shown to have an interest other than that which respected the costs. We hesitate to affirm the correctness of any such rule. The imposition of costs in chancery goes by no fixed law. The chancellor makes the law as respects costs for each case, according to its own peculiar features and circumstances.

If, then, I have an interest in the testimony 'of a witness, whom the complainant choQses by his bill to make a co-defendant with me, where is the justice in holding that, if my co-defendant chooses, without any participation of mine, to make himself meddlesome in a defence that does not concern him, I shall suffer the loss of my testimony, because the chancellor may impose costs upon him 1 At common law, my witness cannot, without my consent, acquire by his own act such an interest as will deprive me of his testimony.

But by this rule, if my witness is made, at the option of the other side, a party defendant with me in chancery, and through ignorance or negligence, or even through secret hostility to me, makes an active defence to the bill, he will be incompetent to testify for me, because by his own act he has subjected himself to the payment of some part of the costs. But it is in the chancellor’s discretion, after all. His testifying need not save him, and cannot, unless the chancellor sees proper.

He may decree for me, and, so far as justice warrants, put the costs where he pleases; a portion of it on my meddlesome co-defendant as soon as any other. Now, the interest which disqualifies must be a direct and certain interest in the event of the suit, or in the record; and this is to be tested, ordinarily, by the state of the case when the suit is commenced; for, as Chancellor Kent says, in Woodhull v. Rumsey, 3 John.

Cases, 234: “ The interest, in order to exclude the witness, must not have arisen after the fact to which he is called to testify happened, and by his own act; because, in that case, it would be in the power of the witness, and even of the adverse party, to deprive the person wanting his testimony of the benefit of it.” See, also, Colgin v. Redman, 20 Ala. 650. We proceed next to the consideration of the questions which relate to the vendor’s lien, which Burns claims to hold on these lands, as against Job Taylor Sr.

The facts are these : Burns and Job Taylor Jr. exchanged lands on the 13th November, 1839, and executed to each other respectively bonds for title of that date. They contained on their face no other condition than that the parties should make title as soon as patents wore obtained from the United States. Nothing was said about the payment of purchase money as a condition to making title. Both then held title bonds from one Washburn for their respective tracts.

On the 16th Nov. 1839, the defendant, Job Taylor Sr., made a purchase from Job Jr. of the lands he got from Burns, and took an assignment of the bond from Burns to said Job Jr. Before he purchased of Job Jr., Job Sr. made inquiries of Burns, who was then on the land, about the titles, if he should purchase of Job Jr., and was told by Burns that there would ho no difficulty about the title, and advised by Burns to make the purchase.

He did purchase, and took an assignment of Burns’ bond, 16th November, 1839, as aforesaid; and the proof in the causo goes to establish the fact, that he paid a full consideration, and purchased in good faith of Job Jr., who then owed him a large amount for money loaned to carry on speculations in Indian lands. On the exchange between Job Jr. and Bums, the latter was to receive $1400 as difference in the value of the tracts, and Job Jr. made his notes for about that sum, which were after-wards put in suit, but have never been paid, and are now the property of Burns.

After the exchange between Job Jr. and Burns, the former rescinded his contract with Washburn for the purchase of the lands he contracted to convey to Burns, and Washburn sold 'them to other persons, and Burns never came into possession of them. In the fall of 1840, one Simeon Taylor, as agent of Job Taylor Sr. to get a deed, called upon Burns, having then in his possession the title bond from Burns, which Job Jr. had assigned to Job Sr., 16th November, 1839, (Job Jr. was in company,) and said Simeon Taylor requested Burns to assign to Job Sr. the bonds he held from Washburn.

This he at first refused to do, saying he would probably thereby impair his lien for the purchase money; but, upon being assured both by Simeon Taylor and Job Jr. that his assignment of Washburn’s bond could not have that effect, and upon Simeon Taylor’s agreeing to take the assignment with the understanding that no lien existing should be impaired by it. Burns made to Job Taylor Sr. an assignment in writing of Washburn’s bond to him for the lands which he let Job Jr. have in the exchange, and Washburn after-wards made a deed to Job Taylor Sr.

After the purchase by Job Sr., and before his assignment of Washburn’s bonds, Burns had delivered possession of the lands to the agent of Job Sr., and assisted him to rent them out, saying nothing at the time of a lien that he claimed for unpaid purchase money, or that he had not received possession of the lands which he was to get in exchange. On this state of facts two questions arise : 1. Did Burns hold a vendor’s lien for the purchase money, after his exchange of lands, as aforesaid, with Job Taylor Jr.l 2.

If so, has he done anything to forfeit that lien, so far as Job Taylor Sr. is concerned 1 By the law as settled in this State, a vendor of land, who takes no independent security for the payment of the purchase money, holds a lien upon the land for the purchase money, against the vendee and all claiming under him with notice of the lien; and this, whether he executes a conveyance, or only gives a bond to make title.—Haley v. Bennett, 5 Porter 452.

This lien is considered as an equitable mortgage, and there is nothing to distinguish an exchange of lands, so far as respects the application of this principle of lien for the purchase money, from a sale of lands.—Bradley v. Bosley, 1 Barb. Ch. 125. We thinkit clear that Burns had a lien on the lands he let Job Taylor Jr. have in exchange, to the full extent of the purchase money, made up of the value of the lands he was to get in exchange, which he never obtained, and the balance of $1400 for which Job Jr. gave his notes, which he never, paid. 2.

Has he done anything to forfeit this lien as against Job Taylor Sr.7 We think he has. In the first place, it is to be remarked, that the bond which Burns gave to Job Taylor Jr. contained no other condition than this, that titles should be made as soon as patents were obtained from the United States. Nothing is said about the payment of purchase money, as a condition precedent to the obligation to make title. From the face of such a bond as this, the presumption is, that the purchase money had been paid.

It would be no more warning to a purchaser from the holder of such a bond that the purchase money was still due to the obligor, than would be a deed for the land in the hands of such holder containing the common acknowledgment that the consideration had been paid. The consideration for this bond, namely, the payment of the purchase money for the land, in the absence of words in the condition of the bond which went to negative such an idea, is implied; the bond itself is prima faeie evidence of that, and would be so held in a suit on the bond.

In principle, then, it comes to this, that such a bond, in the hands of Job Taylor Jr., was no more notice to Job Taylor Sr., his vendee of the land and assignee of the bond, that the purchase money remained unpaid, and was yet due and owing to Burns, than if Job Jr. had held a deed in fee simple from Burns for the land. That would have been only prima facie evidence that the purchase money had been paid, and such a bond was equally so. But Burns was in possession of the land.

This fact alone made it necessary for a purchaser from Job Taylor Jr. to make further inquiry, before he purchased from one out of possession. If Job Jr. had then held a complete deed, instead of only a bond for titles, the same rule would have prevailed. The fact that another was in possession of the land was sufficient to put a purchaser upon inquiry, and would preserve a lien against any who might be willing to hazard a purchase without making inquiry.—Brewer v. Logan, 19 Ala. 481. We find that Job Taylor Sr. did make inquiry at the proper quarter.

He went to Burns, who was in possession, and talked, it seems, fully with him about having an intention to buy the land, if the title was good. Burns advised him to buy at the price he afterwards gave, and, in answer to a question evidently intended to elicit all he knew that would make for or against the propriety of such a purchase, told Job Sr. that if he bought there would be no difficulty about the title to the land. According to the testimony of Rowe, he assured said Job Sr. that the title was good.

Whatever may be the hardship upon him, to hold that such acts and such language from Burns, in respect to this land, will not amount to a waiver of his lien in favor of Job Taylor Sr., would be to protect a man from the natural consequences of his own acts, and cast any injury that may result from them upon the party who acted on the faith of them. There is every reason to suppose, that the conduct and declarations of Burns influenced the subsequent purchase of the defendant Taylor. In such a connection as it occurs hero, what is the reasonable and just

interpretation of an assurance by one man to another that the title to a tract of land which the latter is about to purchase is good 1 Is is merely that the chain of title can be traced without difficulty to a source that is unquestionably good, (to the Federal Government, for instance, with us, where the land has been once public) ? Would that be the common, popular understanding between two men of ordinary intelligence in our country, who were in a negotiation about the sale and purchase of a tract of land? It cannot bo pretended.

On the contrary, they would mutually understand such an assurance to carry with it the idea that the seller would convey, and the buyer would receive, a title good against all conflicting claimants, and also good or free from all liens,¡ incumbrances and equities. But this is not only the popular, it is the legal signification of such terms in a promise, agreement or covenant. These bonds te to make title,” — to make a good and sufficient title,” — are obligations to convoy the legal estate in fee, free from all valid claims, liens, or incumbrances whatever. — 10 John. 266; 1 Blackf. 380; 12 Ala. 39.

When, therefore, Burns, who then held a vendor’s lien for the purchase money, as against Job Jr., who held his bond for title, advised Job Sr. to purchase the land, and, instead of disclosing to him the fact that the purchase money was unpaid, and that he held a lien to that extent upon it, assured him, in reply to his demand for information, that if he bought there would be no difficulty about the title, and that he would get a good title, Ms acts and his words amount in law to an abandonment, a waiver, of his lien in favor of Job Taylor Sr.

His acts amount to an estoppel in pais of his right to assert this lien against the man whose purchase may well he supposed to have been influenced by them.—2 Sugden on Ven. 299; 33 Cond. Eng. C. L. R. 115; Roland v. Day, 17 Ala. 681; Stone v. Britton, 22 ib. 543. His surrender of the possession of the lands to the agent of Job Taylor Sr., after the purchase, without any intimation that he held a lien upon them, would go far to indicate that he himself then put the same

interpretation upon his previous acts. But it is urged that, when Burns was afterwards applied to and requested to assign Washburn’s bonds to Job Sr., he then set up his lien, and refused to make the assignment, until it was agreed on the part of Simeon Taylor, who was acting in the matter for Job Sr., that such assignment was not to'be considered as affecting in any manner the lien he might have for the purchase money.

We readily concede, that, if the lien had not been forfeited by what had transpired previously to that assignment, there was nothing in it that would deserve to work such a consequence, [f the lien was good then, the assignment with the express stipulation of Simeon Taylor, who acted for Job Taylor Sr., that it should not be affected thereby, would not have impaired it in the least.

And whether Simeon Taylor had authority from Job Sr. to make such a stipulation or not, would make no difference, if Job Sr. acquired any advantage by the assignment, and insisted upon holding on to it; the stipulation would bind him, if he gained anything by it which he claimed to retain, even without a previous authority, for that would be an adoption of the act.

But he gained, in legal contemplation, nothing by the assignment that he was not already fully entitled to from Burns by the condition of this bond, namely, a deed in fee simple for the land, with covenant of general warranty for quiet enjoyment, and against all liens and incumbrances. Burns’ bond to Job Taylor Jr., assigned to Job Taylor Sr., bound him to make a deed in fee simple. Washburn’s bond to him bound Washburn to make a deed to him. But, instead of making a deed himself direct to Job Sr., he assigns to him Washburn’s bond in place of' his own, and Washburn makes the deed direct to Job Sr.

There was nothing gained by Job Sr. in this arrangement, so far as Burns was concerned. It was only taking an assignment of Burns’ bond, instead of his deed, which he was bound in law to make; and this surely could work no prejudice to him. The stipulation of Simeon Taylor, therefore, that the assignment of Washburn’s bond should not affect any lien for the purchase money which Burns then held, regarding it as the stipulation of Job Taylor Sr., amounted to nothing. There ■was no lien to lose; it had been forfeited already.

And if Burns assigned the bond, under the influence of such a stipulation, he did no more, at last, than was for his own benefit, and that fulfilled, in a wray entirely for his own advantage, the obligation of his bond to make title to these lands.

Seeing that the decree of the chancellor dismissing the bill is well justified upon a full consideration of the merits of the case, we deem it unnecessary to examine or decide the question which is presented by the argument of defendants in error, in relation to the necessity for making the plaintiffs in the judgments against Job Taylor Jr., and -which the bill alleges now belong beneficially to the complainant, parties to the bill as defendants. In view of what has been already said, it is only necessary to add that the decree of the chancellor dismissing the bill is affirmed, at the cost of plaintiffs in error.