96 Ala. 301 | Ala. | 1892
Under general rules of equity plead
The demurrers to the bill were properly overruled. On the case presented by complainant, he had no remedy in a court of law. The legal title was in the respondent through the foreclosure of a mortgage which antedated complainant’s deed. The claim now advanced by complainant rests upon matter in pais which, he says, estops respondent to assert this legal title against his own superior equity. Of such claims no cognizance is taken by courts of law; equity alone can be invoked to their effectuation. — 3 Brick. Dig. 'p. 448, §§ 26-7. Ordinarily, a bill to remove clouds from title will not lie in behalf of one out of possession, for the reason that ordinarily under these circumstances an action for possession may be maintained at law, judgment in which would dissipate the alleged cloud. But where, as in this case, the title which is supposed to be clouded is an equitable one, the legal remedy does not exist, no recovery could be had at law, however meritorious plaintiff’s title might be in the contemplation of a court of conscience, and upon this consideration the principle has become well established that chancery may be resorted to for relief against the cloud by one out of possession. — Echols v. Hubbard, 90 Ala. 309.
The evidence found in this record, in our opinion, sustains the conclusion of the chancellor that the respondent waived his mortgage on the land in controversy in furtherance of the proposed sale of it by Monroe to complainant, informed complainant of such waiver, willingly allowed him to purchase the property from Monroe and pay for it on the assumption that his, respondent’s, lien was released and waived, and that the purchase and payment were induced by this assumption, thus authorized and justified by the statements and conduct of the respondent. It is unnecessary, and would
That the facts, averred in the bill and which we concur with the chancellor in holding are established by a satisfying preponderance of the evidence, raise up an estoppel in favor of the complainant against the assertion by respondent of any title under the mortgage, and entitle complainant to the relief prayed, there can, upon principle and authority, be no doubt. — Lindsay v. Cooper, 94 Ala. 170, and authorities there cited.
The decree of the Chancery Court is affirmed.