Yarbrough v. Thornton
147 Ala. 221
Ala.
1906
Check Treatment
ANDEBSON, J.

“When land is sold and conveyed with express covenants of warranty as to title, equity is *228without power to grant relief on account of a defect in title, unless the vendor is insolvent. — Cullum v. Branch Bank, 4 Ala. 21, 37 Am. Dec. 725; 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 purchasaer has a deed and is in possession or not.— Younge v. Mabson, 20 Ala. 137; Walton v. Bonham, 24 Ala. 513; Keely v. Allen, 34 Ala. 663.” Parker v. Parker, 93 Ala. 80, 9 South. 426. In the case of McLemore v. Mabson, supra, the court held that the respondent’s claim was not available without an averment and proof of the insolvency of the vendor. The statement of facts does not negative the possession of the defendant; but in the case of Magee v. McMillan, 30 Ala. 420, wherein the ¿If cLemore Case, supra, is discussed, it appears that insolvency of the vendor is essential to the vendee’s relief when there has been no eviction, but is not a fact necessary to be averred when the vendee never went into the possession of the land or had been evicted before asking the relief, in case he had been let into possession. In the case of Dykes v. Bottoms, 101 Ala. 390, 13 South. 582, the complainant filed a bill to enforce a vendor’s lien, and the respondent was permitted to abate the purchase money to the extent of the value of five acres of land conveyed to him, but which the vendor never owned and the possession of which was never acquired by the vendee, notwithstanding there was no averment or proof of the insolvency of the vendor. The case of Gafford v. Proskauer, 59 Ala. 264, holds that a mortgagor cannot be permitted to resort to a court of equity upon the sole ground that he has a proper set-off against the mortgage, but he must show some other fact that would entitle him to equitable relief.

The bill in the case at bar, as amended, seeks to vacate or cancel a sale made under the mortgage, upon the theory that it urns fraudulently made, as the debt was not due, because there was no- default as to the installment in that the value of the 102 acres should be applied in ex-*229tinguishment of said sum, and that it was agreed and understood between them that the value of the 102 acres should be applied as .a credit on the mortgage debt. The chancellor did not err in overruling the motion to dismiss the bill for want of equity. The bill avers that, when the mortgage was transferred to Yarbrough, it was then and there understood and agreed, etc., and that the said Yarbrough, at .and before the assignment of said mortgage, had full knowledge of the facts. The bill sufficiently avers an ' agreement between complainant and Bingham with the full knowledge of the assignee, Yarbrough. Nor does the bill show that this agreement, if made, ivas merged into the bond.

The decree of the chancellor is affirmed.

Weakley, C. J., and Tyson and Simpson, JJ., concur.