majority">CLOPTON, J.

The original bill was filed by appellant for the enforcement of a vendor’s lien. After the sale of the land under a decree ordering it to be sold for the payment of the purchase-money, the complainant petitioned the chancellor to find the balance due after applying the proceeds of the sale, and award execution for the same against appellee, as administrator of the estate of Alfred Holley. The ascertainment of the amount remaining unpaid was referred to the register, who reported that nothing was due by the estate of Holley. Exceptions were filed to the report, which were overruled, and it was confirmed.

The statute provides, that in “suits for the enforcement of equitable liens, execution may issue for the balance found due after a sale of the property ordered and decreed to be sold.” — Code, 1886, § 3605. In the absence of a statute, the court of chancery did not render a decree for any balance of the amount for which the land is ordered to be sold that remains unpaid by a sale of the property, and execution could not be awarded or issued on the decree enforcing the lien. The complainant was remitted to his legal remedies to recover such balance. Section 3605 is a condensation of section 3908 of Code of 1876, which we have heretofore considered and construed. The statute provides for a second decree — -a money decree — based on the entire indebtedness, *220as ascertained by tbe decree of sale, and tbe amount to be deducted therefrom as ascertained by tbe sale. — Pressley v. McLean, 80 Ala. 309. Tbe purpose of tbe statute is to obviate tbe pre-existing necessity of resort to another action to recover any balance of tbe purchase-money, which may remain unpaid after tbe sale; to make tbe chancery suit effectual for tbe enforcement of all tbe rights of complainant, and prevent unnecessary and additional suits. Its effect is to authorize a money decree for tbe balance, only in cases in which a judgment in personam could be recovered against tbe defendant, in an action at law for tbe purchase-money. Tbe statute has no operation, where tbe defendant has not brought himself under obligation to pay tbe purchase-money, and where tbe decree enforcing tbe lien merely ascertains tbe sum with which tbe property shall be charged, and orders it to be sold in satisfaction of tbe same — as in case of a sub-purchaser, who bought the land with notice of a vendor‘s lien, but did not assume to pay the purchase-money due by his vendor, the original vendee.

It is insisted that the first decree, which was affirmed by this court, is conclusive that there was a contract of sale between complainant’s intestate and Holley, and as to the latter’s personal liability. The first decree declared, that the land was subject to the purchase-money, and ordered it to be sold for the payment of a specified sum; but in the opinion, which preceded and accompanied the decree, the chancellor held that complainant would not be entitled to a judgment and execution thereon, for any balance which might remain unpaid after applying the proceeds of the sale. It is manifest that the effect of the decree of sale is not to adjudge the personal liability of Holley; if an adjudication at all in respect to the matter, it was that he was not personally bound. The decree, confirming the report of the register, ascertaining that nothing was due by Holley’s estate, is founded on such being the effect and operation of the first decree, and on the absence of proof that Holley ever assumed or promised in writing to pay the purchase-money due by Ramer, who was the vendee of the complainant’s intestate, though he purchased with notice of the lien. As the decree enforcing the lien did not adjudicate that Holley was personally bound, his personal representative could interpose to the rendition of a money decree any objection or defense which would avail to defeat a suit at law for the recovery of the purchase-money. An examination of *221tbe evidence satisfies ns, that Holley nevei* made any valid agreement to pay tbe purcbase-money of tbe land, wbicb could bave been enforced by an action at law; consequently, there is no error in tbe chancellor's confirmation of tbe report of tbe register.

Affirmed.

Citation profile

Relationships

How this case has been treated — in progress