112 Ala. 539 | Ala. | 1896
The question the case presents, is, whether the assignee of a bond of the vendor of lands, ■covenanting for the making of title to the obligee on the full payment of the purchase money, can maintain an action against the vendor, who enters before the purchase money is fully paid, cutting and removing trees from the lands, to recover the penalties given to the owner of lands, by the statute. — Code of 1886, § 3296. .Uniformly, the statute has been regarded as penal, and of consequence, subject to a strict construction, by which
The bond for title was assignable, and if, as seems to have been true, the assignment was absolute, the estate and interest in the lands which was vested in the assignor passed to the assignee. The vendor having notice of the assignment, the assignee succeeded to the place and relation the assignor had occupied, and could pursue all remedies, legal or equitable, (and no other), for the enforcement of his rights or interests, which the assignor could have pursued. — Brown v. Chambers, 12 Ala. 697 ; Skinner v. Bedell, 32 Ala. 44; Waterman, Specific Performance, § 68.
The relation of the vendor and the vendee of lands, the. vendor covenanting to convey title on the full payment of the purchase money, has been of frequent definition. Until the purchase money is fully paid, the vendee has but an imperfect equity. The vendor has the legal estate, and in courts of law is regarded as having the right to and in the lands; the sole exclusive right. For the recovery of possession, he may maintain ejectment against the vendee, compelling him to resort to equity for redemption, or rather for specific performance'. — Bankhead v. Owen, 60 Ala. 457, and authorities cited. As the estate of the vendor, the lands are subject to levy and sale under execution, and the purchaser at the sale may maintain ejectment and recover possession from the vendee — the equity with which he is invested, will not in a court of law protect his possession. — Nickles v. Haskins, 15 Ala. 619 ; Trammell v. Simmons, 17 Ala. 411; Sellers v. Hayes, Ib. 749 ; Chapman v. Glassell, 13 Ala. 50; Elmore v. Harris, Ib. 360. The relation^ of the parties, in a court of equity, are essentially different. Acting upon a favorite maxim, of regarding that as done which ought to have been done, or which the parties contemplate shall be done in the final execution and consummation of the contract, for most purposes, a court of equity regards the contract as specifically exe
The statute is intended for the protection of the freehold from spoliation or destruction ; from that which at common law would be deemed waste. The remedy is given exclusively to the owner of the freehold, and he may pursue it though he have not the possession. — Allison v. Little, 93 Ala. 150 ; Turner v. Glover, 101 Ala. 289 ; Clifton Iron Co. v. Curry, 108 Ala. 581. Whatever may be the varied meanings of which the word owner is capable, and whatever may have been the signification attached when employed in other connections, or in reference to other subject matters, in this statute it is limited to the owner of the legal estate in lands. This is its precise meaning, and it would be an unwarrantable interpretation, violative of the cardinal rule that penal statutes are to be strictly construed, if it .were extended so as to comprehend one who has but an equity, of which courts at law cannot take cognizance.
The vendor and vendee of lands, the vendor retaining the legal estate, covenanting to convey it, on the payment of the purchase money, stand in a relation analogous to that of mortgagor and mortgagee. If the mortgagor is in possession and is committing waste, the law day not having passed, a court of equity, at the instance of the mortgagee, will intervene, and by injunction restrain the waste. — Coker v. Whitlock, 54 Ala. 180. The same doctrine is applied if the vendee is in possession committing waste, lessening the security of the .vendor for the payment of the purchase money.—
We find no error in the record, and the judgment must be affirmed.
Affirmed.