1. It is true, as a general rule, that a defendant to a suit in equity, who stands in contempt of the process of the court, will not be heard in the introduction of any new matter before the court, or to take merely formal objections to the proceedings. [Massena v. Bartlett, 8 Porter, 277.] But we apprehend this rule has never been considered as precluding the dismissal of a bill which has no equity on its face. Indeed, the 31st rule expressly provides that a defendant may at any time move to dismiss the bill, or dissolve an injunction for want of equity. [Dig. 616, § 31.]
2. On the merits of the bill, we entirely agree with the chancellor, that it contains no case for relief. When the conveyance from Harden is looked to, it will be seen he invests his creditor with the legal title to the lands which the complainant subsequently contracted to purchase, and expressly authorized the defendant to dispose of,, bargain, sell, and make titles to the whole, or any part of the property conveyed, so as to indemnify himself from any damage which might arise from a default. Now, under this general power, it is very clear that neither Harden or his heirs can controvert the right of the complainant to have the title under his contract, although the defendant may have been relieved af-terwards from his recognizance for Harden’s appearance. It does not appear from any allegation of the bill, that at the time of the contract of sale, the defendant had not the right to sell by the terms of the trust deed. This allegation is essential, if the bill is to be considered as alledging a want of authority to sell, and renders it fatally defective.
3. If, in point of fact, the defendant was unable to make a good title in performance of his contract, it is not to be supposed, that by equitable rules he would be permitted to *844coerce the purchase, money from, the complainant, but we. apprehend his course under such circumstances would be to tender the money and demand a title, or at least, in a suit to enjoin proceedings for collecting the- contract price,, to aver his readiness to pay upon a sufficient title being-made. [See Cullum v. Bank, 4 Ala. Rep. 21, and cases there cited.] It is unnecessary, however, to consider the case is this aspect, as the bill is not framed to meet it.
Decree affirmed.
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