Nelms v. Prewitt

37 Ala. 389

Opinion

R. W. WALKER, J.

Under the Code, {% 2240,) tbe claim of the complainant for an abatement of the purchase-money, on account of a deficiency in the land sold,' add for damages by reason of the breach of the defendant’s covenant of warranty, might have been presented and allowed as a set-off, in ’ tbe action at law upon tbe note for the purchase money. — Holley v. Younge, 27 Ala. 203 ; Gibson v. Marquis, 29 Ala. 668; Bell v. Thompson, 34 Ala. 635. It is not necessary that we should consider whether, on account of the non-residence of his vendor, this demand of the complainant was not also available by way of equitable set-off in a court of chancery; for, supposing that to be so, still it is well settled, that where a defendant in an action at law has a cross demand, which'is an equitable, as well as a legal set-off, he cannot withhold‘it as a defense to the action at law, and, after’tbe judgment has 'been rendered, make it the 'basis of a 'suit in chancery. If, in point of fact, the complainant has a well-founded claim for damages against the defendant, he might have had the benefit of it byway of set-off in the action at law; and, as no legal excuse is shown for the failure to make the defense in that suit, no relief can now be had in chancery. — Pearce v. Winter Iron Works, 32 Ala. 73; Foster v. State Bank, 17 Ala.

"‘'Decree affirmed.