Blanks v. Walker , 54 Ala. 117 ( 1875 )

STONE, J.

We can not agree with appellant that the record fails to show the amended answer was allowed by the chancellor. His order made in vacation, dated September 14th, 1875, considered in connection with the motion of defendent to be allowed to file an amended answer, amounts to an order by him allowing such answer to be filed. We think, also, that when he ordered the answer to be filed as of that date, it was permissible for him to consider its denials when the case came afterwards before him- — October 2d — -on motion to dissolve the injunction. The answer being allowed by the chancellor, and ordered to be filed, became from that time, and for all practicable purposes, a part of the pleadings in the cause.

The bond for title, given by Walker to Blanks, bound the former to make to the latter a good and sufficient title to the lands therein described. Such title he, could not convey unless he was himself seized in fee. It was enough, however, under the facts disclosed in this record, for him to have such title, when Blanks, by payment' or tender of the purchase money, placed himself in condition to demand title.—Clemins v. Loggins, 2 Ala. 514

Other principles apply, however, 'where there is fraud in the sale.—See Young v. Harris, 2 Ala. 108; Elliott v. Boaz, 9 Ala. 772; Bonham v. Walton, 24 Ala. 514 Or, when the vendor is insolvent, has either no title ór a defective title, and is seekimg to force the collection of the purchase money, on an executory contract of sale.—See Kelley v. Allen, 34 Ala. 663, and authorities therein collected; Magee v. McMillan, 30 Ala. 420; McLemore v. Mabson, 20 Ala. 137.

The only available equity in the present bill, is Walker’s alleged insolvency, and inability to respond in damages — his title being alleged to be imperfect. The averment of insolvency and inability to respond in damages, is denied with clearness and certainty, quite equal to the averments of the bill. We think the defendant brought himself strictly within the rule, and that the chancellor rightly dissolved the injunction.—1 Brick. Dig. 677, § 548.

Decree affirmed.