140 Ala. 523 | Ala. | 1903
By tbe bill, as first filed it is made to appear that defendant Maury bought the notes secured by complainants’ mortgage to Phillips on the lands in controversy, and that thereafter pursuant to an agreement, complainants executed a deed to Maury for the lands and a note for a sum they agreed to pay him as for a purchase of the lands, and received his bond stipulating for a conveyance of the lands back to them if the note was paid at maturity and for the payment of rent by complainants if they failed to pay the note at that time. The effect of these transactions, if had, was to make defendant Maury the vendor of the complainants, and the assumed equities of the bill as it then stood were no other than such as pertained to complainants as vendees of Maury.
In the amended bill the averments of the above mentioned facts are retained, and others are added which purport to show not that defendant Maury was owner of the Phillips notes, but that he made a loan of money to complainants wherewith to pay those notes under an agreement that the writings passing between them as above mentioned, should operate solely as a mortgage to secure a sum supplied by D. H. Maury in paying the Phillips notes; and an equity is asserted as existing in favor of complainants as mortgagors of the land.
The relation of vendor and vendee is essentially different from that of mortgagor and mortgagee. The aver-ments of the bill by setting up in effect both that the contract between complainants and defendant was for the creation of the first and also for the second of those relations, are made inconsistent with each other. This defect though curable by' amendment renders the bill subject to the demurrer.—Friedman v. Fennell, 94 Ala. 570.
Prosecution of Maury’s attachment suit would not be any act of waste or in the nature of'waste within the rule which allows the use of affidavits in opposition to
Affirmed..