The Birmingham age-herald., 1903-02-26


 Dowdell. J.-The appelleess, who were
 tenants in common and owners of three-
 fourth interest in certain real estate anu
 a mining plant situated thereon soia ana
 conveyed their said interest to appellants
 The deed of conveyance contained GOV.
 chants of warranty, excepting however
 from the covenants, certain speciiied
 claims or debts due and owing rom ap-
 pellees to their vendors on the property
 described. and which said indebtedness
 the appellants assumed and agreed 10
 pay as a part of the consideration Tor
 the conveyance from appelees 10 appel-
 lants. The total amount of the eonsid-
 eration as expressed In the deed was SzV'-
 00O part of which was paid Tn cash'
 and after deducting the amount of the as-
 stunned indebtedness, there remained bal
 ance of s4o5O and for which the appellants
 executed their two notes in equal amounts
 payable at six and twelve months, ana
 to secure the payment of said notes gave
 a mortgage upon the identical property
 purchased The first of said notes was
 paid at maturity. The second of said
 notes being the one maturing at tWelNe
 months, was by the other payees trans
 ferred to the payee, Robert H. Walker,
 one of the vendors of the property be-
 fore it's maturity. and the said Robert H. Walker. the owner and holder of it. was proceeding to enforce collection by | a foreclosure of the mortgage given to secure payment of the same, under the | powers contained in the mortgage. by ad- l vertisement and sale of the property.
 when the present bill was filed by appel
 lants It appears that John A. Walker
 one of the respondents to the bill, nego-
 tiated with the appellants, compliments | in the bill, for the sale of said prop erty; that during the negotiations, the complainants visited the location and | inspected the property. and after the | terms of sale had been agreed on, the deed of conveyance, exhibit "A to the bill. was executed. except to its deliv-
 cry, each of the grantors signing for him self, and which was by the said John A. Walker. taken to Memphis, Tenn, tho
 home of the compliments, where it's ue- livery was made, and at which time the
 note and mortgage were executed by ths appellants. It further appears that at the time of the execution of the note and mortgage and the delivery of said deed and contemporaneous herewith, the said John A. Walker executed to complain | ants the written contract attached as exhibit "C'' to the bill, stirulating among | other things that certain articles should | be supplied, and certain duties perform | ed, by him and his associates in con-
 nection with the mining machinery on the land The bill ayers that said contract, exhibit "C,' was made by said John A Walker for himself and as the agent of the other respondents to the bill. A
 breach of this contract is alleged, and 1t
 is further averred, that by reason of the failure of the respondents to carry out its
 terms and stipulations the eomplanants
 were compelled at their own expense, 70 supply the articles and perform the duties
 otherwise required of the respondents by
 the contract. The bill also alleges a fail-
 ure of title as to a portion of the lanG
 conveyed by the deed, and further ayers the insolvency of the respondents. The purpose of the bill is to set-off the dam
 ages sustained by complainants resulting from the breach of the contract, exhib. | "C," and from a breach of the coven-
 ants of warranty contained In the deed
 against the note, and to that end to have 1 the same delivered up and cancelled, and the foreclosure proceedings under the
 power In the mortgage perpetually en- joined. There is no charge of fraud or
 misrepresentation in the sale of the prop erty. The answer denies the insolvency Of the respondents, and also denies the
 material allegations of the bill as to the
 counter claims set up against the note
 in question. The answer further ayers that the part of the lands conveyed by
 the deed as to which a defect in title
 Is claimed, was the portion purchased by
 respondents from one Peter Clay, who
 conveyed to them by deed with covenants
 of warranty, and on this land there was balance of S4000 due said Clay, the pay
 ment of which said amount was assumed by the complainants, and deducted from l the consideration price of the property | as agreed on between the compliments l and the respondents, and that said l amount so assumed and retained was more than sufficient to meet any loss | occasioned to the complainants by reason | of any defect in titles to the land 1t is also averred in the answer, that the debt | of $6600 due to the Adams Machine com | pany. which was assumed by the com l plainants, was also deducted from the l consideration price of the property con- | veyed, and fur rthermore, that this debt | was for mining machinery sold to re- | spondents by the Adams Machine com l pany under a contract, by which they | agreed to furnish a pump sufficient for l the purpose for which 1t was intended in
 their mining operations, and that com l plainants were amply protected against | any loss from a failure of the Adams Machine company to supply the pump under their said contract, out of the said amount received from the consideration
 price, and representing the debt due the
 Adams Machine company. the payment of
 which complainants assumed
 The cause was heard on the pleadings
 and proof on a submission for final de- cree and a decree wal "endered b;' the
 chancellor denying com2l lnants relief
 and dismissing their bill. From this de- cree the present appeal is prosecuted and the same is here assigned as error
 Before referring to the facts as we l gather them from the evidence. or to the failure of proof as to certain allegations of the bill denied in the answer, we will | state the law as heretofore laid down in former adjudications by this court, which we think applicable to the present case.
 In Strong and Wife vs. Waddell. 56 Ala.
 473 it was said: The law ought to be
 regarded as finally and definitely set tied in this State, after the numerous
 decisions declaring it, that a vendee who
 has gone into possession, under a deed with covenants of warranty or a bond stipulating for the conveyance of title with covenants of warranty. on the pay
 ment of the purchase money cannot un- less there was fraud in the sale to him, or the vendor is insolvent, and therefore without ability to respond to his coven- ants. so long as he remains in possession, either at law or in equity. defend against
 the payment of the purchase money"
 Magee vs. McMillan 30 Ala. 420, Again it was said in Thompson vs. Sheppard, | S5 Ala. 61S a case similar in principle to | the one at bar Independent of this, | there is another rule of equity fatal to defendants right to the relief he seeks by his cross bill on account of partial