THOMPSON v. SHEPPARD.

(Supreme Court of Alabama. January 22, 1889.)

1. VENDOR AND VENDEE-ENFORCEMENT OF VENDORS' LIEN-PLEADING-DESCRIPTION OF LAND.

A bill to enforce a vendor's lien, which describes the property as being the residence of complainant at the date of conveyance, bounded on the east by a designated section line, on the west by a designated public road, and on the north and south by the lands of other persons, and being a part of a small subdivision of a government section, the number of which, and the range, township, county, and state are given, complies with the rule requiring reasonable certainty of description. 2. DEED-DESCRIPTION-BY METES AND BOUNDS.

When a deed describes the land conveyed as "a piece of land about 100 feet long or wide, "further described by metes and bounds, and the land is at the date of conveyance fenced and known to the purchaser, the description by metes and bounds controls the statement as to quantity.

3. VENDOR AND VENDEE-VENDOR'S LIEN-WAIVER.

Notes referred to in a deed as part of the consideration, which recite that they are given for the unpaid purchase price, and which are signed only by the pur chaser, are not a waiver of the vendor's lien merely because they contain a waiver of the maker's personal property exemption.

4. SAME-NOTICE OF LIEN-INNOCENT PURCHASer.

Where a conveyance recites that certain notes are given as a part of the purchase price, a purchaser from the vendee is bound to take notice of the facts, and cannot defeat the vendor's lien on the ground that he is an innocent purchaser.

5. HOMESTEAD-ALIENATION BY WIFE-CONVEYANCE.

When a conveyance of a homestead expressly states that the wife joins therein "solely for the purpose of relinquishing her dower interest in the land," the conveyance is not effectual as an alienation of the homestead, though the requisite certificate of examination and acknowledgment of the wife to constitute such alienation is appended.1

6. SAME-SALE OF HOMESTEAD-VENDOR'S LIEN-DIVISION OF PROCeeds.

On bill to enforce a vendor's lien, where it appears that the land conveyed was a homestead exceeding in value the statutory limit, that it cannot be divided, and that the requisite signature and assent of the wife were not obtained, under Code Ala. 1886, § 2538, providing that when the homestead, after being reduced to the lowest practicable area, exceeds $2,000 in value, and the husband has aliened it without such signature and assent of the wife, the husband, or, if he fails to act, the wife or children, may by bill in equity have the land sold, and the homestead interest separated from that of the alienee, the court, to prevent multiplicity of suits and render full relief, will decree a sale of the land, and award to the vendor $2,000 of the proceeds as his homestead interest.

7. EQUITY-RESCISSION OF DEED-DEFECT IN TITLE.

In a case free from fraud, equity will not rescind a conveyance on account of a want or defect of title, but will leave the purchaser to his remedy at law, if he has not abandoned or restored possession, unless its retention is necessary to his reimbursement or indemnity.

Appeal from city court of Birmingham; H. A. SHARPE, Judge.

Bill filed by Fred G. Sheppard against Newcomb F. Thompson and J. N. Rutledge, to enforce a vendor's lien for the unpaid purchase money of land, which the complainant had sold and conveyed to Thompson. The conveyance was dated December 13, 1886, and contained the usual covenants of warranty, and was signed by F. G. Sheppard and his wife, and duly acknowledged by both of them, but recited that the wife "joins in this deed solely for the purpose of relinquishing her dower in the land hereby conveyed." The price of the land was $6,000, of which $1,500 was paid in cash, as the conveyance recited, and the purchaser's three notes taken for the residue, each for $1,500, payable one, two, and three years after date, with interest, and each containing a waiver of exemption as to personal property. The first of these notes not being paid at maturity, the complainant filed his bill to en

1 Concerning the necessity of the wife's joining the husband in a conveyance of a homestead, in order to convey title, see Betts v. Sims, (Neb.) 41 N. W. Rep. 117, and note; Collins v. Baytt, (Tenn.,) 10 S. W. Rep. 512.

force a vendor's lien, and asked that the cause be retained under the orders of the court until the maturity of the other notes, or his rights be otherwise protected by the decree. The parcel of land, which the deed recited "is now occupied as a homestead by the grantor herein," was thus described in the ded: "A piece of land about one hundred feet long or wide, fronting on the Huntsville road, and extending east to the section line, it being all of the north-east quarter of the south-east quarter of the south-east quarter of the north-east quar ter of section twenty-six, (26,) township seventeen (17) south, of range three (3) west, except a strip 114 feet wide on the north end thereof, and except a strip 150 feet on the south end thereof, heretofore sold off by the grantors herein; the same being balance of lot conveyed to the undersigned, Fred G. Sheppard, by J. C. Prine and his wife, E. M. Prine, on the 2d June, 1884, and recorded in vol. 61, page 58." The land was thus described in the bill: "Said piece of property is bound by the Huntsville road on the west, by the line of McCafferty on the north, by section line on the east, and by residence property of Brown and D. T. Marable on the south; being a piece of land 82 feet wide, and 340 feet long, more particularly described in a deed from F. G. Sheppard and wife to N. F. Thompson, of date December 13, 1887, which is referred to; which said property, with the dwelling thereon, was occupied by complainant for a residence prior to said sale to Thompson, and is now occupied by said Thompson as a homestead, with the exception of a portion thereof sold by said Thompson to said J. N. Rutledge, as hereinafter set forth. All of said property is near Birmingham, Ala., on what is known as the North Highlands,' and is situated in the N. E. quarter of S. E. quarter of S. E. quarter of N. E. quarter of sec. 26, T. 17, range 3 west, in said state and county." The defendants each demurred to the bill, "because the description of said land is confused, indefinite, and incapable of identifying the land in controversy," and because the vendor's lien was waived by the waiver of exemptions contained in the notes as set out in the bill. The defendant Thompson insisted in his answer, and also by cross-bill, that the conveyance executed to him by the complainant "was and is utterly void," because it is insufficient to pass the title to the homestead, and therefore asked a rescission of the contract; and he further insisted that, if the contract should not be rescinded, he was entitled to an abatement of the purchase money on account of the defect of the title, and on account of a deficiency in the quantity of the land, alleging that it contained only 66 front feet, and claimed compensation for a building which he had erected on the land. The court overruled the demurrers, and on final hearing, on pleadings and proof, rendered a decree for the complainant, and this decree is now assigned as error by the defendant Thompson.

Martin & McEachin, for appellant. S. D. Weakley, for appellee.

CLOPTON, J. The bill of complaint, which is filed by appellee to enforce a vendor's lien on real estate, substantially conforms to the requirement of equity pleading, that such bill shall describe the land sought to be charged with sufficient certainty and definiteness to inform the court what particular land it is asked to decree to be sold, -to render it capable of identification. The particular land can be ascertained and identified by the description as the residence of the complainant at the time of the sale and conveyance, bounded on the east by the section line, on the west by the Huntsville road, and on the north and south by the lands of other persons, being a part of a small subdivision of a subdivision of a quarter section; the numbers of the section, township, and range west being stated, and the state and county in which it is situate. This is reasonable certainty, which is all that the rule requires. Hurt v. Blount, 63 Ala. 327; Whitehead v. Lane, 72 Ala. 39; Gaston v. Weir, 84 Ala. 193, 4 South. Rep. 258.

The notes taken for the deferred payment of the purchase money contain a waiver of exemption of personal property. It is contended that taking such

notes constitutes a waiver of the vendor's lien. It is well settled that when a vendor takes the personal security of the vendee only, the equitable lien will be declared and sustained, unless waived by agreement; but when he takes any distinct and independent security for the unpaid purchase money, such as the personal responsibility of third persons, or a mortgage on other property, the presumption arises that it was his intention to take such security as a substitution for the lien, which presumption will prevail, and the lien considered as waived, in the absence of an agreement for its retention. The question of waiver is one of fact or intention. The notes recite that they are given for the unpaid purchase money of land, which strongly evinces an intention to retain the vendor's lien, and becomes almost, if not quite, conclusive, when considered in connection with the recital of the notes in the deed as part of the consideration. Tedder v. Steele, 70 Ala. 347; Chapman v. Peebles, 84 Ala. 283, 4 South. Rep. 273. A waiver of exemptions, specified in a note, creates no lien upon the property that would be otherwise exempt. The only effect is to subject the exempt property to levy and sale under an execution on any judgment which may be rendered on the note, the same as other property of the debtor. Such note may enhance the personal security of the vendee, but can in no sense be regarded a distinct and independent security. The taking such note manifests rather an intention to look to the personal security of the vendee only, and is not presumptive of the waiver of the vendor's lien. Woodall v. Kelly, ante, 166, (December term, 1888.)

The defendant Thompson, who is the original vendee, seeks by cross-bill an abatement of the purchase money on account of an alleged deficiency in the quantity of the land sold. The contention is that the lot was sold by the front foot, and falls short of the number of feet represented. As to the fact whether the lot was sold by the foot or in gross, the evidence of the parties tothe transaction is in conflict. In view of this conflict, the deed must be regarded as the controlling expositor of the character of the contract. After reciting, as the consideration, three notes of $1,500 each, and the sameamount in cash, making the aggregate sum of $6,000, it describes the land as follows: "A piece of land about one hundred feet long or wide, fronting on the Huntsville road, and extending east to the section line; it being all of the north-east quarter of the south-east quarter of the south-east quarter of the north-east quarter of section twenty-six, township seventeen south, of range three west, except a strip 114 feet wide on the north end thereof, and except a strip one hundred and fifty feet on the south end thereof, being heretofore sold off by the grantors herein." Both complainant and defendant tes-tify that the lot was fenced at the time of the sale and conveyance the same as it was when the suit was commenced. It is described by metes and bounds, open to observation, and known to the purchaser, and the conveyance expresses a sale in gross. The statement as to quantity-“about one hundred feet long or wide"-is not an express averment or covenant as to the quantity. Such statement, as it appears in the deed, immediately followed by a description by metes and bounds, is a part of the description of the land, which will be rejected if inconsistent with the actual area. In such case the definite description by metes and bounds controls. The claim of defendant, based on a deficiency in quantity, is not sustained by the evidence. Crampton v. Prince, 83 Ala. 246, 3 South. Rep. 519; Rogers v. Peebles, 72. Ala. 529.

The conveyance executed by the complainant and his wife to Thompson ex-pressly states that the wife joined therein "solely for the purpose of relinquishing her dower interest in the land." The lot conveyed was the homestead of complainant, and the requisite certificate of the examination and. acknowledgment of the wife to constitute a valid alienation of the homestead. is appended to the deed. The defendant Thompson seeks also by the cross

bill a rescission of the contract of sale, and compensation for improvements, or an abatement of the purchase money, on account of a want of title to the homestead interest.

In Long v. Mostyn, 65 Ala. 543, the mortgage of the homestead recited that the wife joined in the conveyance for the sole purpose of conveying whatever right of dower she had in the premises. It was held that the conveyance affected only her right of dower, and that her signature and assent to its execution was not the voluntary signature and assent required by the constitution and the statutes to create a valid alienation of the homestead. It appears that the lot of land sold and conveyed was largely in excess of $2,000. Prior to the act of February 9, 1877, the statutes provided no method for carving a homestead or its equivalent out of property which, when reduced to its lowest practicable area, still exceeded $2,000 in value. A homestead thus circumstanced was without the constitutional protection, and a valid conveyance of the whole land could be made by the owner, being a married man, without the voluntary signature and assent of the wife. Farley v. Whitehead, 63 Ala. 295. This defect was remedied by the act of February 9, 1877, which provides a mode for separating the homestead interest. So much of the fifteenth section of the act as is applicable and necessary to be considered in this case is embodied in section 2538 of the Code of 1886, which is as follows: "When the homestead, after being reduced to the lowest practicable area, exceeds two thousand dollars in value, and the husband has aliened the same by deed, mortgage, or other conveyance, without the voluntary signature and assent of the wife, shown and acknowledged as required by law, the husband, or, if he fails to act, the wife, or if there is no wife, or she fails to act, his minor child or children, may, by bill in equity, have the land sold, and the homestead interest separated from that of the alienee." Under the statute it has been held that a conveyance of land, thus circumstanced, by the husband, without the voluntary signature and assent of the wife, vested in the alienee no title whatever to the homestead interest, not exceeding $2,000 in value. Moses v. McClain, 82 Ala. 270, 2 South. Rep. 741. We must therefore consider the decree in the court below on the theory that the deed by complainant to Thompson is inoperative to vest any title to the homestead interest. The husband, however, cannot avoid the conveyance as to the homestead interest, and take a proportionate interest in the property itself, holding it as tenant in common with the alienee or otherwise. The right and remedy are both statutory. The statutory mode is a sale of the land by bill in equity, and the appropriation of $2,000 of the proceeds to the owner in substitution of the homestead. A purchaser at such sale acquires a valid title to the homestead interest, without the voluntary signature and assent of the wife. The husband has the right primarily to receive the proceeds of sale; the wife can act only in the event he fails to act. A decree of sale on a bill filed by the husband for this purpose operates to bar any bill subsequently filed by the wife or minor children.

The deed made by complainant to Thompson is valid as to all of the land in excess of the homestead interest. When, in such case, the vendor files a bill to enforce his lien on the whole land, the court rightfully acquires jurisdiction of the subject-matter, and, having rightful jurisdiction of the subjectmatter and the parties, will not undertake to do justice by piece-meal. It has authority to require the complainant to do equity as a condition to the grant of relief, and will exert its powers to do justice between the parties; and to this end will mould its decrees to meet the exigencies of the case, and adapt them to the mutual and adverse claims and controlling equities, having regard to the substance more than to the mere form of proceeding. Reese v. Kirk, 29 Ala. 406. In order to quiet litigation, and to prevent a multiplicity of suits, the court may, on a bill filed by the husband as vendor to enforce his lien, decree a sale of the land, and award and allot to the husband $2,000 of v.5so.no.17-22

the proceeds of sale as his homestead interest. It would be a vain and useless proceeding, injurious to the rights of the parties, and would render uncertain and insecure the title acquired from a judicial sale, if the court were, in such case, to abate the purchase money by the value of the homestead interest, decree a sale of the land in excess thereof for the payment of the balance, and turn the parties around to the expense and inconvenience of another bill to have the land resold, and to separate the homestead interest, when all can be accomplished in one suit. When land sold by the husband is so situated that the lowest practicable area to which it is reducible exceeds $2,000 in value, and the husband files a bill in equity to enforce a vendor's lien, a decree of sale of the whole land, separating from the proceeds of the sale the value of the homestead interest, is a separation of such interest from that of the alienee, in substantial conformity with the statute, and protects the real and substantial rights of the parties.

Independent of this, there is another rule of equity fatal to defendant's right to the relief he seeks by his cross-bill, on account of a partial want of title. He has continued in the possession and enjoyment of the land, with full knowledge of the defect in the title from the time of his purchase, and has sold and conveyed a part of it. No fraud or misrepresentation is alleged or proved. In a case free from fraud, equity will not rescind the contract on account of a want or defect of title, but will leave the party to his remedy at law, if the purchaser has not abandoned or restored possession, unless its retention is necessary for his reimbursement or indemnity. It has been said: "The law ought to be regarded as finally and definitely settled in this state, after the numerous decisions declaring it, that a vendor, who has gone into possession under a deed with covenants of warranty, or a bond stipulating for the conveyance of title with covenants of warranty, on the payment of the purchase money, cannot, unless there was fraud in the sale to him, or the vendor is insolvent, and therefore without ability to respond to his covenants, so long as he remains in possession, either at law or in equity, defend against the payment of the purchase money." Strong v. Waddell, 56 Ala. 471; Garner v. Leverett, 32 Ala. 410; Woodall v. Kelly, supra. The deed made by complainant to Thompson contains the usual covenant of warranty, and there is neither allegation nor proof of fraud or of the insolvency of the vendor.

The defendant Rutledge, who is a subvendee of a part of the land, is not an innocent purchaser. He is charged with notice of whatever appears on the face of the deed to his vendor, through which he makes out his title. The deed to his vendor shows on its face that the purchase money is unpaid, and is an integral part of his own title. Witter v. Dudley, 42 Ala. 616.

There is no error in the decree of which appellant can complain. Affirmed.

HOME PROTECTION OF NORTH ALABAMA v. CALDWELL et al.

(Supreme Court of Alabama. January 22, 1889.)

1. JUDGMENT-SETTING ASIDE-ERRORS CURED BY JUDGMENT.

In a suit on a fire insurance policy, where the complaint contained every necessary averment, defendant pleaded, but did not appear at the trial, and verdict and judgment were rendered for plaintiffs. Held, that it is too late after judgment to raise objections under Code Ala. 1886, § 2835, providing that no judgment can be arrested, annulled, or set aside for any matter not previously objected to, if the complaint contains a substantial cause of action.

2. SAME-ENTRY-ABSENCE OF DEFENDANT-INTERVENTION OF JURY.

In such an action, it not being "founded on an instrument in writing ascertaining the plaintiff's demand," within the meaning of the Code, § 2740, it would have been error to have rendered judgment without the intervention of a jury to ascertain the amount of plaintiff's damage.