93 Ala. 80 | Ala. | 1890
— The parties to this suit are all illitera! e, none of them being able to write their names. The litigants are brothers. Martin Parker owned a small tract of land in Jefferson county, and James E. Parker a tract of about the same size in Shelby county. The mineral rights of each tract had been sold by former owners, before either of them acquired their several ownershijis; so that neither of them ever •owned the mineral rights in their respective holdings. In'October, 1886, the brothers agreed on an exchange of lands, the
In January, 1890, Martin Parker filed his bill in this case against James E. Parker, and prayed a rescission of the said contract of exchange of the two parcels of land. The grounds on which he claims this rescission are, that in making the trade James E. represented that he had a perfect, unincumbered title in fee to the land he was trading to him, Martin; that he did not own the minerals in said land; that James E. was insolvent, and was not able to respond in damages, should he sue him at law; and that he, Martin, did not discover that the minerals in the land belonged to another, until shortly before the present bill was filed. The answer denies the misrepresentation as to quantum of title charged, avers that Martin had full knowledge at and before the trade that James E. did not own the minerals, but that they belonged to another, and denies that James E. was or is insolvent. Much testimony was taken on both sides, and there is much conflict in it, as to whether Martin knew when he made the trade that he was not getting the minerals in the land which fell to him. There was a failure to prove that James E. was insolvent. The chancellor dismissed the bill.
Several questions of law, which may be supposed to have some bearing on this case, have been so often decided, that it is only necessary to state the principles, and cite the authorities. When land is sold and conveyed with express covenants of warranty as to title, equity is without power to grant relief on account of a defect in title, unless the vendor is insolvent. — Cullum v. Branch Bank, 4 Ala. 21; 2 Brick. Dig. 513, § 102; Lett v. Brown, 56 Ala. 550; Strong v. Waddell, 56 Ala. 471; Hughes v. Hatchett, 55 Ala. 539. If there be fraud, or failure of title, and the vendor is insolvent, equity will interpose, and grant what relief it can, whether the purchaser has a deed and is in possession, or not.— Young v. Harris, 2 Ala. 108; McLemore v. Mabson, 20 Ala. 137; Walton v. Bonham, 24 Ala. 513; Kelly v. Allen, 34 Ala. 663.
In the most favorable view that can be taken for the appellant, the question resolves itself into a single- inquiry of fact: Did James E. Parker, in negotiating the trade with Martin, represent that he had an unincumbered title in fee to the land he was selling or exchanging, and did Martin close the trade in ignorance that the right to the minerals was in another? We have weighed the conflicting testimony with the best care we could give it, and we are not satisfied this averment of the bill is proved.
Affirmed.