30 Ala. 311 | Ala. | 1857
Upon the allegation and proof of the facts above stated, Mrs. Bryant would doubtless have been
The only relief, however, to which Mrs. Bryant would have been entitled upon a bill filed after the defendant’s entry of the land had been vacated and canceled as aforesaid, would have been a return of the purchase-money paid by her to the defendant, with interest thereon, and the value of her improvements made on the land, after deducting therefrom the rents and profits of the entire tract she bought from the defendant up to the time she bought the four acres thereof from Mims, the owner of the "Weakly claim, and the rents and profits of the entire tract, except said four acres and the improvements on said four acres, from the time of her said purchase from Mims up to the time the defendant’s entry was vacated and canceled as aforesaid. — Bright v. Boyd, 1 Story’s Rep. 478; Read v. Walker, 18 Ala. 323; Gressett v. Poster, supra.
As that was the only relief to which Mrs. Bryant was entitled, in equity, at the time of her death; and as no descendible or transmissible interest in the land, under
The executor of Mrs. Bryant is not barred of the relief to which we have above shown Mm to be entitled, by the sale of the land since her death under the order of the probate court, and his bidding it off at that sale. All right and interest in the land, which she ever acquired by her purchase from the defendant, was extinguished by the cancellation of his entry of that land by the government officers. "When that cancellation thus extinguished her rigjit and interest in the land, under her pvrchase from the defendant, it rendered complete her right to a return of the purchase-money paid by her to the defendant, and interest thereon, subject to the deductions above mentioned; and that right to a return of the purchase-money cannot be destroyed or lost by a sale by the executor, which took no right from the defendant, conferred none on the highest bidder thereat, to any interest acquired from the defendant, and is ineffectual for every purpose, except, perhaps, to give the bidder the right to the four acres bought of Mims as aforesaid, and to charge the executor, upon the principle of caveat emptor, with the amount of his bid, in favor of the creditors and legatees of Mrs. Bryant’s estate.
The decree of the chancellor, dismissing the bill, is erroneous, and must be reversed; the cause is remanded, to be proceeded in according to the views and principles hereinabove declared. The ajjpellee must pay the costs of the appeal.