Barnett v. Gaines

8 Ala. 373

• Court: Supreme Court of Alabama
• Decided: June 15, 1845
• Status: Published

Opinion

ORMOND, J.

There is not a particle of equity in this bill. It is certainly true, that a dower interest in lands, is an incum-brance, which in a proper case, would afford a sufficient excuse to the vendee, for refusing to perform the contract on his part, if it were still executory. But this contract has been fully executed, on the part of the vendee, who has paid the purchase money, and been let into the possession of the premises, and who in addition, if that were important, must have known at the time, that the incumbrance existed. It is the established rule in Chancery, that if a purchaser with knowledge of an existing incumbrance, proceeds to execute the contract in part, as by the taking possession of the land, he will bo required to execute in full; and a for-tiori will not be allowed to rescind it, after an execution on his part. Colton v. Wilson, 3 P. Will. 191; and see also Beck v. Simmons and Kornegay, 7 Ala. Rep. 71, where this question was fully considered.

If this were a proper case for equitable interference, there would be no pretence whatever for the injunction prayed for, as the equity of Townsend, a bona fide purchaser of the judgment, without notice of the plaintiff’s demand or equity, if any existed, is superior to his, and there is no connection whatever, between the judgment thus sought to be arrested, and the claim of the plaintiff, so as to affect Townsend with constructive notice. In every view which can be taken of the case, the bill is utterly destitute of equity, and the decree of the Chancellor dissolving the injunction must be affirmed.