Eudora Mining & Development Co. v. Barclay , 122 Ala. 506 ( 1898 )

HARALSON, J.

— The name of F. H. Sprague appears signed to the purchase money note, AArith the names of L. D. Phillips, Win. M. Knight and Wm, Neindorff written on the back of it. It is payable to Merrill & Bridges or order, AAdio acted in the transaction as agents of complainants. The bill avers that the parties above named purchased the lands in question from complainants, at the price of $4,000, with the vieAV and for the purpose of organizing a corporation under the laws of this State to be known as the Eudora Mining & Development Company, to deArelop and work the said lands for gold; that on the 19th of October, 1897, the said company was organized and chartered in the probate court of Cleburne county, and on the 2d of December, 1897, said F. H. Sprague conveyed said lands to said company, which Avent into and is now in possession of the same; that the title to said lands was made by complainants to said Sprague at the request of said parties, for convenience in conveying and transferring the same to said company; that the said purchasers paid $1,500 in cash on said purchase, and executed the note in suit for the balance of the purchase money; that said Phillips, Knight, and Neindorff, signed their names on the back o'f said note, not as indorsers thereof, but they Avere in deed and in fact joint makers of said note and joint purchasers of said land with the said F. H. Sprague.

The demurrer to the bill is in denial of its allegations and proceeds upon the grounds, that it appears from the bill that complainants waived their vendor’s lien on the land for the purchase money by taking personal security for the obligation of the said P. H. Sprague, the vendee, as shown by the indorsement of the names of Phillips, Knight and Neindorff thereon, and that said Sprague waived his exemptions in said note.

It is argued by appellees, that the note attached to the bill shows that the parties whose names are on the back thereof are indorsers and not makers of the same, and this status cannot be varied by averments in the bill to the contrary, and by parol proof in support of such averments.

1. If the allegations of the bill are true, Sprague, Phillips, Knight and Neindorff were the joint and equally interested purchasers of said lands from complainants, and the debt as evidenced by the note for the unpaid purchase money, is for their and each of their individual, original indebtedness, and their names as signed on the back of said note, were placed there by them, not as indorsers, but in fact as the makers thereof. While it is true, that generally the makers’ names are signed to a note at its foot, and the indorsers, if any, on its back, and without more the names of those appearing-on the back would be presumed to have been placed there as indorsers, and not as makers, yet, we know of no rule of law, which requires that the makers may not place their names on any part of the note where they may prefer to write them, and thus bind themselves as makers. It is immaterial, in other words, upon what part of a note the name of a maker may be written. — Quin v. Sterne, 26 Ga. 226; s. c. 71 Am. Dec. 204; Story on Prom. Notes, § § 34, 121, 152.

2. The note having been signed in the manner stated, and being the joint obligation of all the parties thereto as makers, the waiver of exemptions contained therein applied to each of the obligors. It is well understood in this State, that when a promissory note which is given for the unpaid purchase money of land and recites a waiver of exemptions of personal property, this does not raise the presumption that the vendor’s lien Avas waived. Thompson v. Sheppard, 85 Ala. 611.

3. One of the complainants, W. O. Barclay, was, as appears, a resident of this State, and the other two reside in Texas. It has long been held, that in an action by several, one of whom is a resident, security for costs is not necessary, although all the others are non-residents. — Ex parte Jemison, 31 Ala. 392; Ex parte Bush, 29 Ala. 50. There was no error in refusing to require security for costs.

The demurrer and the motion to dismiss for want of equity were properly overruled.

Affirmed.