17 Ala. 411 | Ala. | 1850
This court has uniformly held that the holder of a bond for title executed by one having the title to the land cannot defend at law against the vendor — (Chapman v. Glassell, 13 Ala. 50) — neither has he such an interest as can be sold under execution at law against him, and the purchaser at such execution sale cannot maintain an action even against such equitable holder to turn him out of possession. — Elmore & Willis v. Harris, 13 Ala. 360. In the case before us,' McKinney, the vendor to Dubose, had received all the purchase money except fifty dollars. Pie then held the legal title to the land and a lien upon it, which the law gives a vendor, for the payment of the remaining sum of fifty dollars, that being the purchase money remaining due and unpaid. This interest, which McKinney held in the land, namely, the legal title and the equitable lien, he had the right to mortgage. The mortgagee, however, would take but the interest which the mortgagor had — it may be the legal title only, or if he transfered the indebtedness of the first purchaser, then the lien for the purchase money. But it is unnecessary to determine what would be the respective rights of the parties in a court of equity. This is a proceeding at law, and we can only look to their legal rights. The plaintiff, Trammell, by his deed from Dubose takes no greater title thaw Dubose had, for no one can transfer a greater title than he has limself. Pie then must be regarded in the same condition with fespect to this action that his vendor, Dubose, would have occupied. We have seen that his equitable title acquired by his
Now if Trammell had held a deed from McKinney, even though it were subsequent to the mortgage, under the previous decisions of this court of Duval’s Heirs v. McLoskey, 1 Ala. 708, and Glidden v. Doe on the dem. of Andrews, 10 ib. 166, lie would have been entitled to recover, since he would have occupied the place of the mortgagor, who as to all the- world but the mortgagee is considered the legal holder and owner of the land. The case would then present a very different aspect. Trammell would have possessed a title to which we could have looked — a legal title which would not have been at all affected by the decree of foreclosure to which he was no party. But as it is, be has no legal foundation on which to stand: And as he must recover upon his own title and having but an equity, he cannot recover in this action, but must res'ort to equity where his title can be asserted.
Let the judgment be affirmed.