WALKER, J.
— The charge of the court below authorized a recovery, in an action for a breach of warranty, of damages for money paid to remove a paramount equitable title existing at the time of the conveyance. The appellant contends, that a vendor, who has the legal title, cannot be made liable at law for a breach of warranty, growing out of the necessary purchase by the vendee of. an outstanding adverse equitable title. That the existence of such an equitable title, and the compulsory purchase of it, amount to a breach of covenant of quiet enjoyment, is not denied; but the point made is, that a court of law cannot take cognizance of the equitable outstanding title.
’While we concede that an equitable title cannot be enforced in a court of law, we think that it may be the ground from which the legal right springs, and that, in the enforcement of the legal right, it may become necessary and competent for the court of law to recognize the equitable title. The contrary of this doctrine was held, in 1800, by Lord Kenyon, who said, “Sitting in a court of law, we cannot take notice of an.equitable title.” — Alpass v. Watkins, 8 Term R. 516. In that case, a recovery back of a part of the purchase-money, paid by the plaintiff oh a contract for the purchase of land, was refused, upon the ground that, for the purpose of a trial at law, the vendors had a good legal title. The same question came up two or three years later; and Lord Alvanley decided, that a plaintiff, who had paid a deposit on the purchase of a *697leasehold estate, might recover it back in an action for money had and received, upon the ground that the title was not good in equity. — Elliott v. Edwards, 3 B. & P. 181.
The same question again occurred in 1814, in the Eng-glish court of common pleas; and Gibbs, Chief-Justice, having before him the decisions in Alpass v. Watkins, and Elliott v. Edwards, decided that the deposit made by a purchaser might be recovered back at law, because the title was defective in equity. He uses the following language : “Here is a contract to make out a good title. If that contract be a contract to make a good title both in law and equity, we must collaterally look to see whether the title be good in equity, as well as in law. It is true we sit here only as a court of law, to administer the legal rights which arise out of the contract; but one of those rights is, to have a title good in equity. See to what a length the defendant’s doctrine would proceed! If a deed appeared on the abstract, whereby lands were conveyed to A. and his heirs, to the use of B. and his heirs, in trust for C. and his heirs, it would prove that a good title at law was made out in B. and his heirs, to convey without the concurrence of 0.” This decision, it is said in 1 Sugden on Vendors, 243, “ appeared to have set the point at rest.” In the later case of Bayman v. Gutch, 7 Bing. 379, the question does not seem to have been, whether a court of law could take cognizance of the fact that a title was bad in equity; yet the court, without controverting the cases above cited, make some remarks which do not harmonize with the law as laid- down in them. The question in Willet v. Clark, 10 Price, 207, was altogether different; and that case is not at war with the proposition which we have laid down. The question in that case was, whether the purchaser could defend against a suit for the purchase-money, because the title of the vendor was derived by a purchase at a bankrupt sale by the assignee, and was, therefore, liable to be avoided in equity. The principle laid down in the decisions of Lord Alvanley and C. J. Gibbs, is asserted in Addison on Contracts, 177, and the authority of those decisions is there recognized.
*698This principle is also supported by decisions on analogous questions. Thus, it is held, that a promise in consideration of the release of an equity of redemption, after condition broken, will sustain an action at law, and that the court of law “will take notice that the mortgagorhas an equity to be released in chancery.” — Thorpe v. Thorpe, 1 Lord Raymond, 662. An agreement to forbear proceedings to enforce a well founded claim in equity, may be recovered upon at law. — Dowdenay v. Oland, Cro. Eliz. 768; 1 Parsons on Contracts, 365; Robinson’s Adm’rs v. Tipton’s Adm’r, at the present term. An action at law may be maintained upon a promise in consideration of the waiver of an equitable right. — 1 Parsons on Contracts, 369; Whitbeck v. Whitbeck, 9 Cow. 266. A purchaser of land by parol, who has gone into and retains possession,, (his vendor not having failed or refused to comply with the contract,) cannot resist a recovery on his note for the purchase-money, upon the ground of a want of consideration. — Gillespie v. Battle, 15 Ala. 276.
The breach of the covenant gives a right at law to recover damages; and if that breach has grown out of the existence of an equitable title, it is, in our judgment, competent for a court of law to take notice of the equitable title, so far as it constitutes an element of the breach of warranty. It results that the charge is not erroneous, because the outstanding title bought in by the covenantee was equitable.
2. It is also objected to the charge given by the court below, that it permitted a verdict for the plaintiff without regard to the question, whether the equitable title was paramount or superior to the legal title conveyed to him. The charge was, that if an equitable title existed at the time of the conveyance in one Ronalds, and the plaintiff' and defendant knew of it; and if the plaintiff had since bought in that equitable title, for the purpose of avoiding a chancery suit to enforce it, the plaintiff was entitled to recover. An equitable title might have existed at the time oí the conveyance, which was paramount to the legal title conveyed to the plaintiff, but which would nevertheless have been postponed to the title de*699rived by the conveyance. That could have been the case, where the plaintiff was a purchaser without notice. But the charge does not authorize a recovery in the case where the plaintiff has bought in an equitable title, subordinate to his legal title, because he was a purchaser without notice. On the contrary, it makes the knowledge of the plaintiff and defendant, of the outstanding equitable title, one of the requisites to a recovery. It might be that both the plaintiff and defendant, at the time of the conveyance by the latter to the former, had knowledge of what is called the equitable title; and yet it might be postponed to the legal title, because the person under whom the defendant held was an innocent purchaser, for valuable consideration, without notice of the equity. Whether the charge is obnoxious to the objection, that it would allow a recovery in such a case, we do not think it necessary for us to decide. The judgment must be reversed on another point; and it will be very easy for the court, in any future charge, to avoid the point of difficulty and doubt in the present charge.
3. It is a historical fact, that the lands in Franklin eounty, in this State, are all held under the government of the United States. The evidence of that fact is found in the treaties with the tribe of Indians who transierred the lands to the United States, and in the acts of congress. Even the reservations, provided for by the treaty, were held under the United States. The title to them came from the United States. So the school lands were transferred by the general government in trust to the State, and are thus held under the United States. The warranty of title in the deed “against the lawful title, claim or demand of all and every person, claiming or holding by, from or under the government of the United States,” is, in effect, a covenant of warranty against the title of all persons; and it was not incumbent upon the plaintiff to show that the equitable title bought in by him was the title of one “ claiming or holding by, from or under the government of the United States.” That is a fact of which the court was bound to take judicial notice. The general warranty of title was equivalent to a coven*700ant for quiet enjoyment. — Caldwell v. Kirkpatrick, 6 Ala, 60; Andrews v. McCoy, 8 Ala. 929. This covenant of quiet enjoyment was broken, if the plaintiff was compelled to buy in the equitable title which, was outstanding at the time the covenant was made, and paramount to the legal title, in order to avoid a suit for its enforcement. Anderson v. Knox, 20 Ala. Rep. 156; Davenport v. Bartlett & Waring, 9 Ala. Rep. 180; Dupuy v. Roebuck, 7 Ala. Rep. 484.
4. The breaches assigned allege, that the plaintiff' has bought in an equitable title of Peter Lorillard, Thomas A. Ronalds, John A. Thomas, and John D. Wolfe, trustees and executors of the last will and testament of Mariah D. L. Ronalds, deceased. The proof showed an outstanding equitable title in Thomas A. Ronalds, and the charge authorized a recovery upon that proof. The charge, in this respect, is clearly erroneous. The plaintiff' has no right to récov.er upon a cause of action totally different from that described in his complaint. It is not sufficient that the plaintiff makes out a right of action by evidence. He must prove-the cause of action averred in the complaint. The omission to object to irrelevant evidence when it is offered does not preclude the right to move its exclusion, or to ask a charge at any time before the jury retire, nor authorize a charge that the plaintiff may recover upon facts variant from those alleged.
5. The evidence which was objected to was only illegal because it tended to make a case different from that alleged. The admissions were of matters of law, so mingled with matters of fact, that they could not be separated. If relevant, they were admissible. — 1 Greenleaf on Evidence, § 97.
The judgment of the court below is reversed, and the cause remanded.