22 Ala. 593 | Ala. | 1853
The land is unquestionably bound for the purchase money, until a decree is made divesting the legal title, (Foster v. Trustees of the Athenæum, 3 Ala. 302;) and the only interest which the heirs of West have in the land, is the right to demand a legal title upon the payment of the notes given by their intestate for the purchase money. This right is equitable assets, belonging to the estate of West,
To avoid the injurious results of this rule, application is made to the Court of Chancery, to invest the heirs of West with the legal title to the lands, with the view of benefitting that estate, by thus putting the lands in a condition as to title which would hold out stronger inducements to purchasers. In other words, the court is asked to take the legal title from the heirs of Holmes, and vest it in the heirs of West, in order to increase the assets of the last estate. The mortgagor cannot come into a court of equity to redeem, without the payment of, or the offer to pay, the mortgage debt; and so, if the application had been made directly by the heirs of West, to invest them with the legal title, in order that they might sell the lands, the court would not aid them until the purchase money had been paid. Suppose the heirs of Holmes divested of the legal title, and the lands sold under the decree, at a less sum than the amount for which they were already bound, on the notes given on the first sale; the last buyer, on the payment of the purchase money, would get the title, and for the difference in amount between the two sales, the only security would be the notes of West. It is no answer to say this will not happen. The operation of the decree would be, to deprive those interested in the estate of Holmes of a separate and distinct security for the purchase
The decree of the Chancellor must be affirmed, with the costs of this court, against the plaintiffs in error.