Williams v. Sturdevant , 27 Ala. 598 ( 1855 )

CHILTON, C* J.

The chancellor, in 'our opinion, very properly dismissed the bill in this case. Its title to relief is, an alleged palpable fraud in selling land by defendant to complainant, to which defendant had no title, and which fraud, the bill charges, was afterwards admitted by the defendant. Both the answer and the proof show that there was no pretext for such an allegation. On the contrary, the defect in the legal title to a very inconsiderable portion of the entire tract was occasioned by an innocent mistake in the deed from Reeves to the appellee, which was carried into his deed to the appellant. This mistake was promptly corrected by the appellee, as soon as his attention was called to it, in procuring a corrected deed from his vendor, Reeves, and in the execution of a correct one to the appellant. The creditors of Reeves have no right in equity, upon the facts here disclosed, to interfere with this fraction of land, and it appears the appropriate remedy has been resorted to for the purpose of enjoining them. Had the appellant alleged -the mistake, and made Reeves and the attaching creditors parties, as well as the appellee, he would, under the facts disclosed by the answer and proof, have clearly entitled himself to a correction of the conveyances, thus perfecting his title by remedying the mistake. He would, doubtless, in such case, have been protected in the cost. But he has not seen proper to do this. He has chosen to set up fraud as a ground of being relieved from the entire contract. He has failed in this, and upon his allegations he can have no relief. He must recover, if at all, upon the case made by the bill. — See McKinley v. Irvine, 13 Ala. 681; Wiley Banks & Co. v. Knight, at the present term, and cases cited.

'We do not regard this as a case in which the appellant should recover costs. He has evidently manifested a desire, which is by no means commendable, to get rid of his -bargain, the ground of complaint being, at the most, a very small matter, and one which could readily have been remedied. He has never been disturbed in the quiet enjoyment of all the land he purchased, and all the while has had a solvent vendor to stand between him and any danger to which he was exposed by reason of failure or want of title. Upon the whole, we think the decree should be affirmed, and the appellant should be taxed with all the costs.

Decree affirmed.