Opinion
7 Div. 625.
November 4, 1926.
Appeal from Circuit Court, Cherokee County; W. W. Haralson, Judge.
E. O. McCord Son, of Gadsden, for appellant.
A vendee in possession under deed with covenants of warranty cannot, unless there was fraud in the sale to him, or his vendor is insolvent, defeat the collection of the purchase money for defects in the title. Gillham v. Walker, 135 Ala. 459, 33 So. 537; Strong v. Waddell, 56 Ala. 473; Magee v. McMillan, 30 Ala. 420.
Hugh Reed, of Center, for appellee.
Appellant was bound, in full performance of his contract, to acquire the outstanding title, and appellee had a right to require full performance before payment. Taylor v. Newton, 152 Ala. 459, 44 So. 583; Ala. City, G. A. R. Co. v. City of Gadsden, 185 Ala. 263, 64 So. 91, Ann. Cas. 1916C, 573.
In the case of Magee v. McMillan, 30 Ala. 420, it was said:
"We think the doctrine must be regarded as settled in this state, that, where a sale of land is made by deed, with covenants of warranty, and the vendee has gone into possession under the contract, and he and those claiming under him have not been evicted, no defense, either at law or in equity, which rests on a mere incumbrance upon the title, can be made, unless there was fraud in the sale, or the vendor is insolvent, or unable to make good the covenants in his deed."
This principle has been repeatedly declared and applied by this court, not only to cases of incumbrance on the title, but also to cases where there was a failure of title, partial or total. Strong v. Waddell, 56 Ala. 471; Blanks v. Walker, 54 Ala. 117; Thompson v. Sheppard, 85 Ala. 618, 5 So. 334; Gillham v. Walker, 135 Ala. 459, 33 So. 537; Yarbrough v. Thornton, 147 Ala. 221, 42 So. 402; Edwards v. Kilgore, 192 Ala. 343, 68 So. 888.
The application of this principle to the instant case leads to the conclusion that the mortgage note, the payment of which was withheld by respondent because of an outstanding interest in the land, was legally and equitably due on the day of its stipulated maturity, notwithstanding the partial failure of the title as alleged, and that it bore interest from that date.
Respondent seeks to avoid this result on the theory that complainant, as vendor of the land to Miller, respondent's grantor, had undertaken, as a condition precedent to the purchaser's payment of the mortgage notes — or, at least, a proportionate part of them — to acquire the outstanding one-fourth interest in the land, and thereby give to his vendee or his grantee a full and complete title.
This contention is invalid for two reasons: (1) The testimony of Miller indicates no more than an "understanding" that the outstanding interest would be bought in by some one, and that he would get the benefit of it — thus falling very far short of establishing respondent's contention of complainant's obligation precedent. But, even conceding that this showed an undertaking by complainant to buy in the title at some future time, this would be no stronger than the undertaking in a bond for title, or the covenant in a deed, and could not change the principle applicable to a vendee in possession. (2) Respondent's answer contains no allegation of such an undertaking by complainant, and hence, even if proved, it would not be available, for want of appropriate allegation. Gilmer v. Wallace, 75 Ala. 220.
At the time respondent paid the principal of the note, due on January 2, 1922, there was also due thereon interest for 3 years, 1 month, and 8 days, at 8 per centum. For this amount ($124.20) complainant is entitled to relief in manner and form, as prayed in the bill, and, reversing the decree of the trial court, a decree will be here entered granting relief accordingly.
Reversed and rendered.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.