Bryant's v. Boothe , 30 Ala. 311 ( 1857 )

BICE, C. J.

Upon the allegation and proof of the facts above stated, Mrs. Bryant would doubtless have been entitled to relief, at any time after the defendant’s entry had been vacated and canceled by the government officers as aforesaid. Her right to relief under such facts would have rested upon the principles recognized in Cullum v. The Branch Bank at Mobile, 4 Ala. 21, and the settled rule stated in Sugden on Vendors, chap. 9, § VI, page 564, in the following words: “Although the purchase-money has been paid, and the conveyance is executed by all the parties, yet, if the defect \of title\ do not appear on the face of the title deeds, and the vendor was aware of the defect, and concealed it from the purchaser, or suppressed the instrument by which the incumbrance was created, or on the face of which it appeared, he is in every such case guilty of fraud, and the purchaser may either bring an action on the ease, or file his bill in equity for relief.” This rule is cited with approbation by this court in Cullum v. The Branch Bank at Mobile, 4 Ala. 35, and is undeniably a sound rule. — Hitchcock v. Giddings, 4 Price, 135; Prince v. Williams, at the present term; Gressett v. Poster, 29 Ala. 393; Smith v. Richards, 13 Peters, 26; Bedford v. Hickman, 5 Call, 236.

The only relief, however, to which Mrs. Bryant would have been entitled upon a bill filed after the defendant’s entry of the land had been vacated and canceled as aforesaid, would have been a return of the purchase-money paid by her to the defendant, with interest thereon, and the value of her improvements made on the land, after deducting therefrom the rents and profits of the entire tract she bought from the defendant up to the time she bought the four acres thereof from Mims, the owner of the "Weakly claim, and the rents and profits of the entire tract, except said four acres and the improvements on said four acres, from the time of her said purchase from Mims up to the time the defendant’s entry was vacated and canceled as aforesaid. — Bright v. Boyd, 1 Story’s Rep. 478; Read v. Walker, 18 Ala. 323; Gressett v. Poster, supra.

As that was the only relief to which Mrs. Bryant was entitled, in equity, at the time of her death; and as no descendible or transmissible interest in the land, under her purchase from the defendant, remained in her after his entry was vacated and canceled as aforesaid, it is clear tbat since her death neither her heirs nor devisees can maintain any claim to the land under her purchase from the defendant. Her executor is, therefore, the proper party complainant to demand the relief against the defendant. The measure of that relief is indicated in what we have above said would have been the proper relief for Mrs. Bryant.

The executor of Mrs. Bryant is not barred of the relief to which we have above shown Mm to be entitled, by the sale of the land since her death under the order of the probate court, and his bidding it off at that sale. All right and interest in the land, which she ever acquired by her purchase from the defendant, was extinguished by the cancellation of his entry of that land by the government officers. "When that cancellation thus extinguished her rigjit and interest in the land, under her pvrchase from the defendant, it rendered complete her right to a return of the purchase-money paid by her to the defendant, and interest thereon, subject to the deductions above mentioned; and that right to a return of the purchase-money cannot be destroyed or lost by a sale by the executor, which took no right from the defendant, conferred none on the highest bidder thereat, to any interest acquired from the defendant, and is ineffectual for every purpose, except, perhaps, to give the bidder the right to the four acres bought of Mims as aforesaid, and to charge the executor, upon the principle of caveat emptor, with the amount of his bid, in favor of the creditors and legatees of Mrs. Bryant’s estate.

The decree of the chancellor, dismissing the bill, is erroneous, and must be reversed; the cause is remanded, to be proceeded in according to the views and principles hereinabove declared. The ajjpellee must pay the costs of the appeal.