BRICKELL, C. J.
The question the case presents, is, whether the assignee of a bond of the vendor of lands, ■covenanting for the making of title to the obligee on the full payment of the purchase money, can maintain an action against the vendor, who enters before the purchase money is fully paid, cutting and removing trees from the lands, to recover the penalties given to the owner of lands, by the statute. — Code of 1886, § 3296. .Uniformly, the statute has been regarded as penal, and of consequence, subject to a strict construction, by which [543] is intended that it is not to be extended beyond the plain meaning of its words. Or, as it was expressed in Clifton Iron Co. v. Curry, 108 Ala. 581, “No case should be holden to be covered by it, which does not fall naturally, and without constraint, within some fair and accepted designation of its words, in the light of its context.” — Posted Telegraph Co. v. Lenoir, 107 Ala. 640; Russell v. Irby, 13 Ala. 131.
The bond for title was assignable, and if, as seems to have been true, the assignment was absolute, the estate and interest in the lands which was vested in the assignor passed to the assignee. The vendor having notice of the assignment, the assignee succeeded to the place and relation the assignor had occupied, and could pursue all remedies, legal or equitable, (and no other), for the enforcement of his rights or interests, which the assignor could have pursued. — Brown v. Chambers, 12 Ala. 697 ; Skinner v. Bedell, 32 Ala. 44; Waterman, Specific Performance, § 68.
The relation of the vendor and the vendee of lands, the. vendor covenanting to convey title on the full payment of the purchase money, has been of frequent definition. Until the purchase money is fully paid, the vendee has but an imperfect equity. The vendor has the legal estate, and in courts of law is regarded as having the right to and in the lands; the sole exclusive right. For the recovery of possession, he may maintain ejectment against the vendee, compelling him to resort to equity for redemption, or rather for specific performance'. — Bankhead v. Owen, 60 Ala. 457, and authorities cited. As the estate of the vendor, the lands are subject to levy and sale under execution, and the purchaser at the sale may maintain ejectment and recover possession from the vendee — the equity with which he is invested, will not in a court of law protect his possession. — Nickles v. Haskins, 15 Ala. 619 ; Trammell v. Simmons, 17 Ala. 411; Sellers v. Hayes, Ib. 749 ; Chapman v. Glassell, 13 Ala. 50; Elmore v. Harris, Ib. 360. The relation^ of the parties, in a court of equity, are essentially different. Acting upon a favorite maxim, of regarding that as done which ought to have been done, or which the parties contemplate shall be done in the final execution and consummation of the contract, for most purposes, a court of equity regards the contract as specifically exe[544] cubed. The vendee is regarded as the equitable owner of the land — the vendor is the owner of the purchase money — to the land a trust attaches ; the vendor is seized of it for the use of the vendee. The trust binds the land, while the legal estate remains in the vendor; and it binds the heir or devisees succeeding to it, and all claiming. by or under the vendor, except bona fide purchasers without notice. As land, the vendee may convey or devise it; and as land it descends to his heirs.— Wimbish v. M. M. B. & L. Asso., 69 Ala. 575; Ashurst v. Peck, 101 Ala. 499. The dual relation which vendor and vendee thus bear to each other, of one character in a court of law, and of an essentially different character in a court of equity, is analogous to, if not identical with, the relation which mortgagor and mortgagee are deemed to bear to each other.
The statute is intended for the protection of the freehold from spoliation or destruction ; from that which at common law would be deemed waste. The remedy is given exclusively to the owner of the freehold, and he may pursue it though he have not the possession. — Allison v. Little, 93 Ala. 150 ; Turner v. Glover, 101 Ala. 289 ; Clifton Iron Co. v. Curry, 108 Ala. 581. Whatever may be the varied meanings of which the word owner is capable, and whatever may have been the signification attached when employed in other connections, or in reference to other subject matters, in this statute it is limited to the owner of the legal estate in lands. This is its precise meaning, and it would be an unwarrantable interpretation, violative of the cardinal rule that penal statutes are to be strictly construed, if it .were extended so as to comprehend one who has but an equity, of which courts at law cannot take cognizance.
Free access — add to your briefcase to read the full text and ask questions with AI
BRICKELL, C. J.
The question the case presents, is, whether the assignee of a bond of the vendor of lands, ■covenanting for the making of title to the obligee on the full payment of the purchase money, can maintain an action against the vendor, who enters before the purchase money is fully paid, cutting and removing trees from the lands, to recover the penalties given to the owner of lands, by the statute. — Code of 1886, § 3296. .Uniformly, the statute has been regarded as penal, and of consequence, subject to a strict construction, by which [543] is intended that it is not to be extended beyond the plain meaning of its words. Or, as it was expressed in Clifton Iron Co. v. Curry, 108 Ala. 581, “No case should be holden to be covered by it, which does not fall naturally, and without constraint, within some fair and accepted designation of its words, in the light of its context.” — Posted Telegraph Co. v. Lenoir, 107 Ala. 640; Russell v. Irby, 13 Ala. 131.
The bond for title was assignable, and if, as seems to have been true, the assignment was absolute, the estate and interest in the lands which was vested in the assignor passed to the assignee. The vendor having notice of the assignment, the assignee succeeded to the place and relation the assignor had occupied, and could pursue all remedies, legal or equitable, (and no other), for the enforcement of his rights or interests, which the assignor could have pursued. — Brown v. Chambers, 12 Ala. 697 ; Skinner v. Bedell, 32 Ala. 44; Waterman, Specific Performance, § 68.
The relation of the vendor and the vendee of lands, the. vendor covenanting to convey title on the full payment of the purchase money, has been of frequent definition. Until the purchase money is fully paid, the vendee has but an imperfect equity. The vendor has the legal estate, and in courts of law is regarded as having the right to and in the lands; the sole exclusive right. For the recovery of possession, he may maintain ejectment against the vendee, compelling him to resort to equity for redemption, or rather for specific performance'. — Bankhead v. Owen, 60 Ala. 457, and authorities cited. As the estate of the vendor, the lands are subject to levy and sale under execution, and the purchaser at the sale may maintain ejectment and recover possession from the vendee — the equity with which he is invested, will not in a court of law protect his possession. — Nickles v. Haskins, 15 Ala. 619 ; Trammell v. Simmons, 17 Ala. 411; Sellers v. Hayes, Ib. 749 ; Chapman v. Glassell, 13 Ala. 50; Elmore v. Harris, Ib. 360. The relation^ of the parties, in a court of equity, are essentially different. Acting upon a favorite maxim, of regarding that as done which ought to have been done, or which the parties contemplate shall be done in the final execution and consummation of the contract, for most purposes, a court of equity regards the contract as specifically exe[544] cubed. The vendee is regarded as the equitable owner of the land — the vendor is the owner of the purchase money — to the land a trust attaches ; the vendor is seized of it for the use of the vendee. The trust binds the land, while the legal estate remains in the vendor; and it binds the heir or devisees succeeding to it, and all claiming. by or under the vendor, except bona fide purchasers without notice. As land, the vendee may convey or devise it; and as land it descends to his heirs.— Wimbish v. M. M. B. & L. Asso., 69 Ala. 575; Ashurst v. Peck, 101 Ala. 499. The dual relation which vendor and vendee thus bear to each other, of one character in a court of law, and of an essentially different character in a court of equity, is analogous to, if not identical with, the relation which mortgagor and mortgagee are deemed to bear to each other.
The statute is intended for the protection of the freehold from spoliation or destruction ; from that which at common law would be deemed waste. The remedy is given exclusively to the owner of the freehold, and he may pursue it though he have not the possession. — Allison v. Little, 93 Ala. 150 ; Turner v. Glover, 101 Ala. 289 ; Clifton Iron Co. v. Curry, 108 Ala. 581. Whatever may be the varied meanings of which the word owner is capable, and whatever may have been the signification attached when employed in other connections, or in reference to other subject matters, in this statute it is limited to the owner of the legal estate in lands. This is its precise meaning, and it would be an unwarrantable interpretation, violative of the cardinal rule that penal statutes are to be strictly construed, if it .were extended so as to comprehend one who has but an equity, of which courts at law cannot take cognizance.
The vendor and vendee of lands, the vendor retaining the legal estate, covenanting to convey it, on the payment of the purchase money, stand in a relation analogous to that of mortgagor and mortgagee. If the mortgagor is in possession and is committing waste, the law day not having passed, a court of equity, at the instance of the mortgagee, will intervene, and by injunction restrain the waste. — Coker v. Whitlock, 54 Ala. 180. The same doctrine is applied if the vendee is in possession committing waste, lessening the security of the .vendor for the payment of the purchase money.— [545] Moses Bros. v. Johnson, 88 Ala. 517. A mortgagee entering, and committing waste by the destruction of timber on the mortgaged premises, is liable to the mortgagor for the injury to the freehold — for the diminution of its value by reason of the destruction of the timber.— Perdue v. Brooks, 85 Ala. 459. If the vendor had resorted to a court of equity to foreclose or enforce his lien for the payment of the purchase money, the appellee would have been entitled to recover for the injury to the freehold, its dimunition in value, by reason of the destruction of the timber; or, it may be, if he had been sued at law, he would have been entitled to an abatement of the purchase money to this extent. This is the full measure of his rights, and the full extent of Ms remedies. It is not contemplated that parties standing in the relation of mortgagor and mortgagee, or of vendor and vendee, shall recover the one from the other, the penalties given by the statute. If the mortgagor or vendee is in possession he is in possession by the consent of the mortgagee, or of the vendor, and if he is cutting and removing timber, destructive to the security, a court of equity will intervene. If the vendor, or mortgagee enter, and cuts or removes timber, the remedies of the mortgagor or vendee, are plain and adequate, furnishing full compensation. Neither can, or ought to be subjected to the mere arbitrary penalties, the statute imposes not on the theory of compensation, but of punishment for a tort. The case affords an illustration of the injustice, the absolute injustice, which would result from an application of the statute to parties standing in these relations. The original purchase money of the lands was one thousand dollars, which had been partially paid before the waste complained of was committed. The purchase money was paid and the appellant now sues to recover of the vendor the statutory penalties aggregating sixteen hundred and forty dollars, not because the timber was of that value, nor because such was the diminution of the value of the lands, but standing on the letter of the statute, such are the penalties it imposes. Whether he was quickened into the payment of the purchase money by the expectation of the recovery of the penalties, may be matter of speculation. But that he was not the owner, the statute intends to protect, we deem plain.
[546] As is insisted by the counsel for the appellant, deeds, as between the parties, are sometimes deemed to relate back from the day of delivery, and take effect from the time of the contract of purchase, or from the time of the contract to convey. This fiction of relation is intended for the advancement of the right, and not for the working of wrong and injustice. Under its operation parties cannot be converted into wrongdoers and subjected to penalties, as they may not by its operation be converted into violators of the criminal law.
We find no error in the record, and the judgment must be affirmed.
Affirmed.