Larkin v. Bank of Montgomery

9 Port. 434 | Ala. | 1839

ORMOND, J.

The defence in this -case, is, in substance, the assertion of a right to set up an outstanding title in a third person. This, the plaintiff in error, who is a purchaser from the trustees of the .sixth section, cannot be allowed to do. By the purchase, he was let into the possession of the lot, and cannot, while he remains in possession, be permitted, when sued for the purchase money, to defend himself, on the ground -that the vendor had not title to the premises. To enable him to do this, in a proper case, he must put the vendor in statu quo, by returning, or offering to return, the property. He cam not, by retaining possession obtained under, and by virtue of the sale, consider the contract as subsisting, and defend himself by showing a want of title.

We have, therefore, considered it unnecessary to en-quire into the effect of the patent offered in evidence,

^ There was no error in the judgment of the court below, and it is affirmed.