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[Thompson v. Jones.]

Cockrell, 66 Ala. 64; Grigg v. Swindal, 67 Ala. 187; Pettus v. Glover, 68 Ala. 417. In such case, the judgment creditor has an election of two modes of procedure, by bill in equity to test the bona fides of the conveyance, or by levy and sale under the execution, and test the validity of the deed by an action of ejectment. The chancellor held the conveyance to be valid. As to this we express no opinion. The decree must be affirmed on the authority of the cases cited above, on the ground that there is no equity in the bill. Affirmed.

Thompson v. Jones.

Action of Detinue.

1. Detinue; seizure of goods by sheriff; assignment.-In detinue by assignee against a sheriff who had simultaneously levied separate attachments sued out by M. and by L. creditors, upon goods assigned for the benefit of creditors, the defendant sheriff alleged fraud in the assignment, in reply to which plaintiff attempted to introduce evidence of proceedings to show acceptance of the assignment on the part of M. which would preclude him from alleging fraud, but L. was not shown to have been a participant in such proceedings: Held, the evidence was inadmissible, defendant having authority under the attachment of L. to seize the goods if fraud were shown, and to detain enough to pay L.'s claim; and the question whether it be illegal to seize and detain more than enough, cannot be raised in detinue.

2. Objection to evidence.-Objection to testimony as a whole, much of it being legal evidence, is rightly overruled.

APPEAL from Hale Circuit Court.
Tried before Hon. JOHN MOORE.

J. W. BUSH, for appellant.

COLEMAN & COLEMAN, contra.

STONE, C. J.-Taylor and Turk, merchants, made a deed of assignment to Thompson, assignee, for the benefit of all their creditors. The assignment embraced a small stock of merchandise. Twenty days after the assignment was made, Moore & Kenedy and L. & E. Lamar sued out separate writs of attachment against Taylor & Turk, placed them in the hands of Jones, the sheriff, who levied them simultaneously

[Thompson v. Jones.]

on the stock of merchandise. The goods yielded a surplus over the sum required to pay the claim of L. & E. Lamar, but not enough to pay the two claims. Thompson instituted this action of detinue against the sheriff for the recovery of the goods and the defense relied on was that the assignment by Taylor & Turk was made with intent to delay, hinder and defraud their creditors.

In reply to the charge of fraud in the execution of the assignment, plaintiff, Thompson, offered to prove that after Moore & Kennedy knew of its execution. they as creditors made application by petition to the register of the chancery court for an order requiring him, Thompson, to give bond for the faithful administration of the trust.-Code of 1886, $ 3549, et seq. This application was made nine days before the attachment was sued out. He offered to prove further that the register took jurisdiction of the petition, appointed a day for its hearing, gave notice to Thompson, and actually granted the order, requiring him to give bond with sureties. The order was made after the issue and levy of the attachment. It was not attempted to be shown that L. & E. Lamar took any part in this proceeding. The testimony, on motion of defendant was ruled out.

It is contended for appellant, that this testimony would have proved, or tended to prove that Moore & Kennedy ratified the assignment, by electing to take under it, and that they thereby precluded themselves from assailing it as fraudulent. If theirs was the only attachment or claim under which the sheriff detained the goods, it is probable their position would be well taken. It is not permissible to take both under and against an assignment made for the benefit of creditors. Butler v. O'Brien, 5 Ala. 316; McReynolds r. Jones, 30 Ala. 101; Hatchett v. Blanton, 72 Ala. 423. The testimony, however, would not have tended in the slightest degree to preclude L. & E. Lamar from assailing the assignment as fraudulent. And, if fraudulent, the sheriff had ample authority under their attachment for seizing the goods, and detaining enough of them to pay their demand.

If it be contended that Moore & Kennedy's attachment being out of the way, the sheriff could rightfully take and detain only enough goods to meet the Lamar attachment, and that any excess would be a wrongful withholding by the sheriff, the answer is that that question can not be raised in an action of detinue, as this is. It could, at most, furnish ground for an action on the case, for the abuse of lawful

[Linn et al. v. Bass. Adm'r, &c.]

process by the sheriff, in making an excessive levy.—Dezell v. Odell, 3 Hill (N. Y.), 215; s. c., 38 Amer. Dec. 628; Serey v. Adkison, 40 Cal. 408; Handy v. Clippert, 50 Mich. 355; Murphree's Sheriffs, § 527.

The testimony offered could have exerted no influence in the maintenance of the present action, and the Circuit Court did not err in refusing to admit it.

The objection to the testimony of the witness Moore, was to it as a whole. Much of it was legal evidence, and the objection was rightly overruled.-3 Brick. Dig. 443, § 570. There is nothing in the other questions raised. Affirmed.

Linn et al. v. Bass, Adm'r, &c.

Bill to enforce Vendor's Lien.

1. Vendor's lien where purchaser's note is made payable to third person. On a sale of lands, the purchaser's note being made payable to a third person, to whom the vendor was indebted, and by whom it was to be held as collateral security, a vendor's lien attaches to it in the hands of the payee, although he does not surrender the note of his original debtor, the vendor.

APPEAL from Birmingham Chancery Court.

Heard before Hon. THOS. COBBS.

The bill in this cause was filed by the administrator of Hudson to enforce a lien on land, and averred that the vendor, Samuel Linn, was, at the time of the contract of sale, indebted to said Hudson, and as part of such contract, A. J. Linn, the vendee, executed his note for the purchase-money to said Hudson, which said note was held by said Hudson as collateral security for the indebtedness to him of Samuel Linn, which indebtedness was evidenced by two unpaid promissory notes signed by said Samuel Linn, and payable to said Hudson.

JAMES WEATHERLY, for appellant.

HEWITT, WALKER & PORTER, contra.

STONE, C. J.-There is no question that the bill in this

[Ives et al. v. Rice.]

case contains equity.-Buford v. McCormick, 57 Ala. 428; Young v. Hawkins, 74 Ala. 370; Coleman v. Hatcher, 77 Ala. 217.

The averments of the bill are satisfactorily proved, and the decree of the chancellor is affirmed.

Ives et al. v. Rice.

Bill to enforce Vendor's Lien.

1. Setting aside sale under decree, or proof of payment.-Under a decree declaring a vendor's lien, the lands not having been sold until after the lapse of twelve years, the sale was set aside, and satisfaction of the decree entered, on proof of full payment before the sale.

APPEAL from Lauderdale Chancery Court.
Heard before Hon. THOMAS COBBS.

Appellants filed a bill to enforce the vendor's lien. A decree was rendered in their favor in November, 1873. In August, 1885, the register sold the land and made a report of sale. The defendant submitted exceptions to this report, and filed a petition to set aside the sale on the ground that the decree against him had been paid. The question of payment vel non was referred to the register, who reported that payment had been made. Complainants filed exceptions to this report, which exceptions were overruled, and a decree was rendered, that the register enter satisfaction on the record of the decree theretofore rendered against defendant in 1873, and setting aside the sale in August, 1885. Complainants appealed.

EMMET O'NEAL, for appellants.

R. O. PICKETT, contra.

PER CURIAM.-Excluding all illegal testimony to which objection is properly taken, there remains, in the opinion of the court, a sufficient amount of legal testimony to support the conclusion reached by the chancellor, that the decree sought to be enforced in favor of appellants against the ap

[Chapman et al. v. Peebles.]

pllee had been fully paid and discharged prior to the sale of the land.

The sale was, therefore, properly set aside, and there was no error in the decree of the chancellor ordering the entry of satisfaction of the judgment, in favor of the appellant, under which the sale was made.

Affirmed.

Chapman et al. v. Peebles.

Bill in Equity to enforce Vendor's Lien.

1. Privileged communications; testimony of attorney.-An attorney who wrote the note for the purchase-money, which was thereupon signed in his presence by the purchaser, may testify to these facts, in a suit to enforce the vendor's lien, although he was the general attorney and retained adviser of the purchaser; and he may further testify that, on the same day, he paid over to the purchaser moneys in his hands as attorney.

2. Vendor's lien; waiver; burden and sufficiency of proof.-On a sale and conveyance of land, part of the purchase-money being paid in cash, and the purchaser's individual note taken for the balance, a vendor's lien is presumptively retained, in the absence of an agreement to the contrary, or of attendant circumstances repelling such presumption; if the note recites that it is given for the unpaid balance of purchasemoney, and the purchaser is insolvent, these facts strengthen the presumption, and it is not overcome by the execution of the conveyance to his wife and children; nor is the uncorroborated testimony of the purchaser's wife, after his death, sufficient to establish an express agreement to waive the vendor's lien, in the face of these and other facts inconsistent with it.

3. Parties to bill.-Where the purchaser died insolvent, and no administration has been granted on his estate, a bill to enforce the vendor's lien may be maintained against his wife and children, to whom the legal title was conveyed, without making his personal representative a party.

APPEAL from Pickens Chancery Court.

Heard before Hon. THOS. W. COLEMAN.

The appellee, Emory B. Peebles, filed this bill to enforce a vendor's lien on land sold by his father, W. B. Peebles. The said W. B. Peebles having died, the note given him for the unpaid purchase-money, in the division and distribution of his estate, became the property of his son, the complainant.

GREEN B. MOBLEY, for appellants.

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