#### Hoots *v.*Williams.

*Bill in Equity to enforce Vendor’s- Lien.*

1. *Foreclosure of mortgage; bona fide purchaser.*— He who buys property at a foreclosure sale of a mortgage, having no notice that the mortgage, was affected with usury, may be a *bona fide*purchaser, even though the mortgagee, by reason of the mortgage being affected with usury, was not an innocent purchaser.

2. *Foreclosure of vendor’s*Ken; *estoppel of vendor.*— The holder of a vendor’s lien is estopped to assert his lien, as against one who bought the property at the foreclosure sale of a mortgage, which had been given by the vendee, and at which sale he, the vendor, was present, and not only made no objection to the sale, but stated that he had no claim upon the land.

Appeal from the Chancery Court of Lamar.

Tried bbfore the Hon. W. H. Simpson.

The bill in this case was filed by the appellant against the appellee, to enforce a vendor’s lien upon certain lands described in the bill. The facts of the case are sufficiently stated in the opinion.

Nesmith *&*Nesmith and Daniel Collier, for appellant.

1. The defendant Williams was not entitled to the protection of a *bona fide*purchaser for value without notice.— *Webb v. Elyton Land Co.,*105 Ala. 472 ; *Hooper v. Strahan,*71 Ala. 75 ; *Craft v. Russell,*67 Ala. 9.

2. The mortgagee in the mortgage under which appellee Williams claims, by charging usurious interest, destroyed his right to invoke the protection of a *bona fide*purchaser without *notice.*— Meyer *Bros. v. Cook, 85 Ala.*417; *McCall v. Rogers,*77 Ala. 349 ; *LeGrand v. Eufaula*
      *373
      *Nat. Bank,*81 Ala. 123 ; *Woolsey & Sons v. Jones & Bro.,*84 Ala. 88. Williams, as the purchaser of said land, is chargeable with notice of all the facts relating to the mortgage ; and, therefore, can not claim the protection of being a *bona fide*purchaser without *notice.*— Taylor *v. Forsey,*56 Ala. 426; *Sanders v. Robertson,*57 Ala. 465; *Overall v. Taylor,*99 Ala. 12 ; *Manassas v. Dent,*89 Ala. 565; *Reynolds v. Kirk,*105 Ala. 446.

3. The doctrine, of estoppel does not apply in this case. We have shown what we conceive to be the law. Williams having been the purchaser at the mortgage sale the principle of *caveat emptor*applies. It is not shown in this case that the conduct of the appellant is sufficient to constitute an estoppel, and it is not shown that the appellee acted upon, or was misled by it. *Colbert v. Daniel,*32 Ala. 314.

J. C. Milner, J. D. McCluskey and S. J. Shields *contra.*

COLEMAN, J.

The bill was filed to enforce a vendor’s lien upon certain land, to satisfy a balance of purchase money alleged to be due from L. A. Hoots, the vendee. An absolute deed of conveyance, acknowledging full payment of purchase money, with covenants of warranty, was made to the vendee, and no note or other evidence of the unpaid purchase money was taken from the vendee. L. A. Hoots, the purchaser, executed a mortgage upon the land to one Johnson, to se'cure a loan of money and a past due account. This mortgage was foreclosed, according to its terms, and John Williams, the respondent, became the purchaser of the land at the foreclosure sale. Complainant’s'claim is resisted upon three grounds : *First,*that all the purchase money was paid by L. A-. Hoots, the purchaser ; *second,*that respondent Williams was an innocent purchaser at the foreclosure sale, and entitled to protection as such; and *third,*that complainant has estopped himself from asserting a vendor’s lien upon the land. Upon final hearing, the chancellor found from the evidence, that there was nothing due complainant and dismissed his bill. The appeal is taken from this decree. There was evidence certainly which justified the conclusion of the chancery court. The complainant relied upon his own testimony *374and that of his brother and father to establish the claim that there was a balance of purchase money due from the vendee of the land. While there were some other witnesses who sustained the general character of these witnesses as being worthy of credit, in our opinion, the evidence that they were not worthy of credit, considered in connection with the other facts of the case, preponderated. It is singular, that on the day of sale,- the complainant, though present, gave no notice of his claim, but allowed the sale to proceed without objection. According to some of the testimony which is not impeached, on the day of the foreclosure sale, the complainant stated he had nothing against the land.

We are of ojpinion, however, that the conclusion of the chancellor might have been rested upon another ground. It is true that Johnson, the mortgagee, charged the mortgagor (the vendee) usurious interest upon the loan and account secured, and according to the decisions of this court, he can not be regarded as an innocent pur*chaser.*— Meyer *Bros. v. Cook, 85*Ala. 417; *McCall v. Rogers,*77 Ala. 349; *Peterson v. Steiner Bros.,*108 Ala. 629. This rule is not in harmony with the weight of authoiity in other courts, *(Oates v. National Bank,*100 U. S. 239), and though it is the established doctrine of ■this court, we are not disposed to extend it to a purchaser at the foreclosure of the mortgage, who had no notice that the mortgage was affected with usury. As to the testimony tending to show that Williams was notified at some previous time by the Hoots that there was a balance of purchase money due, and declaration by Williams to the effect that he believed the sale to complainant by his .brother was a sham, after a careful reading of the evidence, in connection with the character of the witnesses, and of the evidence itself, we are not much impressed with it. We are reasonably satisfied that on the day of sale, the complainant not only made no objection to the sale, but stated to respondent and others that he had no claim upon the land. It would be inequitable to allow him to assert such a claim now. In any view the question is considered, we are not willing to disturb the view reached by the chancery court.

Affirmed.