Relfe v. Relfe
Relfe v. Relfe
Opinion of the Court
We approve, and are content to abide by, the decision in Driver v. Hudspeth, 16 Ala. 348, that the lien of a vendor, who has made an executory contract for the sale of land, is not destroyed, because an
The decisions in New York and Mississippi, cited for the appellee, take a different view of the question; and one of them refers the preservation of a mortgagee’s lien, after an action is barred, to the-fact that the mortgage is under seal, and therefore its enforcement is governed by a different statute of limitations; and the other, that the mortgage is separate and distinct from the debt, and a more solemn acknowledgment of and security for the debt, while the vendor’s lien is a mere incident to the debt inferred by the law. These decisions are not, in our judgment, correct expositions of the law. The lien of a vendor and a mortgage are alike — in the same sense, and to the same extent — incidents of the debt. They are alike transferred by an assignment of the debt, and neither can survive the extinguishment of it; and the vendor and mortgagee alike have independent remedies, by taking possession, and by proceeding in chancery for a sale to pay the debt. The decision of this court is supported as well by authorities as by principle. — Hopkins v. Cockrell, 2 Grat. 86; Reed v. Minell, 30 Ala. 61; Cross on the Law of Lien, 13, (34 Law Library); ib. 355; Spears v. Pently, 3 Esp. 81; 2 Parsons on Con. 379; Bradford v. Spyker’s Adm’r, 32 Ala. 134; Morton v. Harrison, 1 Bland, 491; 1 Hilliard on Mortgages, 656 ; also, authorities upon brief of appellant’s counsel.
We conclude, that none of the objections made in the argument of counsel to the equity of the bill are maintainable ; and we direct that the chancellor’s decree be reversed, and the cause remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.