McLemore v. Mabson , 20 Ala. 137 ( 1852 )

CHILTON, J.

It is clear that dower is an incumbrance, such as will authorize a purchaser, who has contracted for a good and lawful title, to refuse to perform an executory contract for its purchase. Parks v. Brooks, 16 Ala. Rep. 529. But this principle does not aid the plaintiff in error. Here the contract has been consummated by the execution of a conveyance with covenants of warranty as to title, which conveyance has been accepted by him, and he has mortgaged the land to the complainants. It is true, if the covenants in his deed are broken by the outstanding incumbrance, he has a right either to sue at law upon his covenants, or to resort to a court of equity if the incumbrance was concealed from him, to have a prompt removal of it by the vendor, or, on default of such removal, he is entitled to a rescission of the contract. It is also settled, that notwithstanding the vendee has received a deed, if its covenants be broken by the existence of an outstanding incumbrance, and the vendor is insolvent, then it is competent for the court of equity to restrain the collection of so much of the purchase money, as will compensate for the injury resulting from the breach, or it may order it to be appropriated to the extinguishment of the in-cumbrance, so as to protect the grantee. Cullum v. The Br. Bank, 4 Ala. Rep. 21.

In this case we will not undertake to say what relief, if any, the plaintiff in error is entitled to on a proper application. We think it very clear, he cannot resist the foreclosure of the mortgage, upon the ground that the mortgagees have broken the covenants in their deed to him, and raise this question upon his answer. It has frequently been held by this court, that a defendant, by his answer, cannot pray any thing but to be dismissed the court, and if he has any relief to seek, or discovery to ask, he must do so by bill of his own. Cullum v. Erwin, 4 Ala. Rep. 452; Harris v. Carter, 8 Stew. Rep. 233; Cummings v. Grill, 6 Ala. Rep. 562. We say nothing as to whether the defendant could file a cross bill; or whether, if the complainants below had been averred in the answer to be insolvent, and that the defendant had an equitable set off growing out of' the transaction, by reason of the breach of the complainant’s covenants against incumbran-ces, or for warranty of title, he might not be allowed to avail himself of such set off by his answer, as a defence pro tanto to the mortgage demand. The case calls for no opinion upon these points, as the facts averred in the answer do not bring the defendant within the influence of either of these supposed grounds for relief. So far as this record discloses, the complainants are fully able to respond at law for any injury the defendant may have sustained by the breach of the covenants of his deed, and he therefore lays no predicate for an equitable set off, if one could be allowed without a cross bill. See Goodwin v. McGehee, 15 Ala. Rep. 233.

We are of opinion, that the defence set up by the answer interposed no objection to the forclosure of the mortgage, in the form in which it was presented.

The decree is consequently affirmed.