Vice v. Littlejohn , 116 Ala. 276 ( 1896 )

McCLELLAN, J.

We find nothing in this case to take it out of the operation of the general rule that a purchaser of land who has received a deed with covenants of warranty, and who has taken and continues in possession under his purchase and said conveyance, cannot, in the absence of fraud in the sale, or the insolvency of his vendor, maintain a cross-bill for rescission of the sale on the ground that the vendor was without title, in defense of a bill filed by the vendor to enforce his lien for the purchase money. Our conclusion on the evidence is that the complainant believed at the time of the sale that he had a good title to the land, it having been in the possession of himself and those to whose possessions he succeeded for forty or fifty years under mesne conveyances, and hence that in making the sale lie was not guilty of any fraud. It is not averred that the vendor is insolvent. And the fact that the title has all along been in the United States, and that since the sale and conveyance by complainant to. the respondent the latter has entered the land as a homestead does not stand in the way of the application of the general principle we have stated, but only furnishes a basis for the allowance as a credit on the purchase money of the amount paid in entering the land and reasonable expenses therein incurred. — Gallagher v. Witherington, 29 Ala. 420; Purcell v. Log, 84 Ala. 287.

Affirmed.