4 Div. 903.
December 17, 1936.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
O. S. Lewis and E. S. Thigpen, both of Dothan, for appellant.
A vendor's lien is not created by an express or specific agreement between the parties but is a creature of a court of equity, on the principle that it is unconscionable for one to get and keep the estate of another without paying the agreed purchase price therefor. Bankhead v. Owen, 60 Ala. 457; Williams v. McCarty, 74 Ala. 295; Sims v. National Commercial Bank, 73 Ala. 248; Wilkinson v. May, 69 Ala. 33; Stabler v. Spencer, 64 Ala. 496; Flinn v. Barber, 61 Ala. 530; Terry v. Keaton, 58 Ala. 667; Driver v. Barnes, 223 Ala. 315, 135 So. 145. Legal remedies are inadequate, and suit for accounting is proper where there are mutual accounts, accounts are on one side but complicated, or where fiduciary relation exists. Marx v. Marx, 226 Ala. 684, 148 So. 418. Bill setting up equitable mortgage cannot be sustained by showing a vendor's lien. Kyle v. Bellenger, 79 Ala. 516, 517; Bridgeport L. I. Co. v. American F. P. S.C. Co., 94 Ala. 592, 10 So. 704. Where party claims the property as having passed by a deed, vendor's lien arises against fixtures attached. Huddleston v. Fuller, 230 Ala. 435, 162 So. 107; Southern Cotton Oil Co. v. Lowery, 231 Ala. 119, 163 So. 629. The decree sustaining demurrer to the amended bill is appealable; the order of transfer was incidental. Code 1923, §§ 6079, 6486; Howison v. Baird, 138 Ala. 129, 35 So. 62. But, if not appealable, it is reviewable by mandamus. Jones v. Wright, 220 Ala. 406, 125 So. 645.
Chauncey Sparks and McDowell McDowell, all of Eufaula, and Martin, Turner McWhorter and Wm. M. Moloney, all of Birmingham, for appellees.
An order transferring a case from one side of the court to the other is not appealable; it may be assigned as error after final determination of the cause. Cornelius v. Moore, 208 Ala. 237, 94 So. 57; Phoenix Chair Co. v. Daniel, 229 Ala. 161, 155 So. 532; Pickens County v. Johnson, 227 Ala. 190, 149 So. 252; Maryland Cas. Co. v. Dupree, 223 Ala. 420, 136 So. 811; Wiggins v. Stewart Bros., 215 Ala. 9, 109 So. 101; Code 1923, §§ 6486-6492. No appeal lies from ruling on demurrer on equity side of court after cause is transferred to law side. Jones v. Wright, 220 Ala. 406, 125 So. 645. Mandamus will not lie, for the record shows there was no objection to the order of transfer and no exception by appellant, and that complainant below filed its summons and complaint before appeal taken. 4 C.J. 717; Winter v. Rose, 32 Ala. 447; Ex parte Edwards, 123 Ala. 102, 26 So. 643; Ex parte Scudder-Gayle Grocery Co., 120 Ala. 434, 25 So. 44; State ex rel. Davis v. Curtis, 210 Ala. 1, 97 So. 291; Ex parte Barclay-Hays L. Co., 211 Ala. 500, 101 So. 179; Ex parte State ex rel. Shirley, 20 Ala. App. 473, 103 So. 68; State ex rel. Phillips v. Benners, 172 Ala. 168, 55 So. 298; Ex parte Bolton, 136 Ala. 147, 34 So. 266; Elyton Land Co. v. Morgan, 88 Ala. 434, 7 So. 249; Thomas v. Bellamy, 126 Ala. 253, 28 So. 707; Champion v. Central of Ga. R. Co., 165 Ala. 551, 51 So. 562; Lucas v. State, 144 Ala. 63, 39 So. 821, 3 L.R.A.(N.S.) 412; Smith v. Grayson, 214 Ala. 197, 107 So. 448. A vendor's lien and a lien in the nature of an equitable mortgage are substantially the same. Appellant had a ruling on a vendor's lien on former appeal. Burns v. Taylor, 23 Ala. 255; Prince v. Bates, 19 Ala. 105; Griggsby v. Hair, 25 Ala. 327; Adams v. Phillips, 75 Ala. 461; American F. L. M. Co. v. Pollard, 127 Ala. 227, 29 So. 598; Brackin v. Newman, 121 Ala. 311, 26 So. 3; Taunton v. McInnish, 46 Ala. 619; Brasher v. Grayson, 219 Ala. 631, 122 So. 881. When the principal relief prayed for is denied on the ground of adequate remedy at law, a court of equity will not assume jurisdiction to give a recovery of money only, even though it is connected with some feature of equity jurisdiction such as accounting. Merchants' Nat. Bank v. Roche, 227 Ala. 639, 151 So. 591.
Following reversal of the cause on former appeal (Alabama Power Co. v. City of Eufaula, 232 Ala. 473, 168 So. 661), complainant's bill was amended to seek the enforcement of a vendor's lien, and as last amended the chancellor sustained a demurrer thereto for want of equity, transferring the cause to the law side of the docket. Section 6492, Code 1923.
To review the ruling on such a decree, mandamus in lieu of appeal is the appropriate remedy. Jones v. Wright, 220 Ala. 406, 125 So. 645. The appeal will be dismissed. As to the mandamus proceedings, we have not overlooked the insistence that for matters subsequently occurring and here presented, this remedy for review is also barred. But we pass that question by without determination, for the reason that a consideration of the cause upon the merits settles the entire matter, and with like result.
The argument for appellant indicates a misconception of the holding of this court on former appeal. In the opinion it was stated that complainant sought "to establish and enforce an equitable mortgage," and counsel lay stress upon such statement upon the theory that a distinction was here observed between an equitable mortgage and a vendor's lien, and that the enforcement of the latter was the proper remedy. But the opinion enters into no discussion of this distinction.
A vendor's lien expressly reserved by the very terms of the contract is not a vendor's lien arising by implication of law, "but is created by, and dependent on contract — a contract that the land shall be charged with a lien until the purchase-money is paid." Kyle v. Bellenger, 79 Ala. 516. "Such a reserved lien is regarded as partaking of the nature of an equitable mortgage." Cobb v. Stinson, 229 Ala. 78, 155 So. 586, 587.
The lien sought here to be enforced was expressly reserved in the contract between the parties, and on former appeal the holding was that it was expressly so reserved to protect the stated purchase price of $50,000, and nothing more. That complainant had sought the proper remedy of enforcement of an equitable mortgage was not questioned, but the ruling was rested upon the merits of the cause, which involved a proper construction of the contract of the parties, all substantial elements of which were then before the court. The opinion contains no dictum whatever, and reduced to the last analysis, as we view this appeal, it is in effect but an assault upon the conclusion of the court on former appeal. And in the light of argument of counsel for appellant, we have reread the deed with all attendant contracts and resolutions, all of which were before us on former review. We are still persuaded, however, that the conclusion formerly reached is correct, and that the lien expressly reserved by contract on the real property conveyed was limited by the parties to the $50,000 consideration, as therein expressed (presumably fully paid), and was not intended to embrace the two and one cent per kilowatt hour referred to in the original contract of Foy and Shemwell. Further elaboration is unnecessary.
The whole matter was one of contract, and we consider that a proper interpretation of the contract is set forth in the opinion on former appeal.
The question of accounting was evidently considered as a mere incident to the relief sought in the enforcement of the equitable mortgage and dependent thereon, and the conclusion was that for any breach as to any sum due on account of the two and one cent per kilowatt hour feature of the contract, there was an adequate remedy at law. We think this a correct view also of that question, and that as a bill seeking an accounting alone and independent of any lien feature, it was properly held without equity. Cullmam Property Co. v. H. H. Hitt Lumber Co., 201 Ala. 150, 77 So. 574; Beggs v. Edison Electric Illuminating Company, 96 Ala. 295, 11 So. 381, 38 Am.St.Rep. 94; City of Mobile v. McCown Oil Co., 226 Ala. 688, 148 So. 402; Dargin v. Hewlitt, 115 Ala. 510, 22 So. 128; Marx v. Marx, 226 Ala. 684, 148 So. 418; Merchants' National Bank v. Roche, 227 Ala. 639, 151 So. 591; 2 Ala. Digest, Account, pages 56, 57.
The chancellor correctly sustained the demurrer for want of equity, and committed no error in his transfer of the cause to the law side of the docket.
The mandamus is therefore due to be denied, and the appeal dismissed.
Mandamus denied. Appeal dismissed.
ANDERSON, C. J., and BOULDIN and KNIGHT, JJ., concur.