Strong v. Waddell

BRICKELL, 0. J. The decree does not fix on the appellant Aletha a personal liability, nor condemn her statutory separate estate, if any she has, to the satisfaction of the mortgage debt. It simply orders a sale of the mortgaged premises for the payment of the purchase-money. A married woman, doubtless, labors under a disability of contracting, so as to bind herself personally; nor can she charge her statutory estate, except in the modes the statute prescribes. But, if she purchases real estate, and executes, jointly with her [473] husband, a promissory note for payment of the purchase-money, and a mortgage of the premises as a security for its payment, coverture cannot be interposed in bar of a foreclosure. Otherwise, the disability would operate as an ability to get and keep another’s lands without paying the consideration. — Reeves v. Pylant, at the last term; Cowles v. Marks, 53 Ala. 499 ; Chilton v. Braiden, 2 Black, 458. 2. There is no principle, on which a mortgagor, or vendee in possession, can be allowed to set up an outstanding title in another, in bar of a bill for foreclosure, or of a bill to enforce the lien for the payment of the purchase-money. The .mortgagor and the vendee alike stand to the mortgagee and the vendor in the relation of tenant, and are estopped from denying his title. — Bigelow on Estoppel, 382, 373. 3. The law ought to be regarded as finally and definitively settled 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 payment of the purchase-money, cannot, unless there was fraud in the sale to him, or the vendor is insolvent, and therefore without ability to respond to his covenants, so long as he remains in possession, either at law or in equity, defend against the payment of the purchase-money. — Magee v. McMillan, 30 Ala. 420. 4. If there be no fraud, and no covenant taken to secure the title, the purchaser is remediless. The maxim, caveat emptor, applies. — Abbott v. Allen, 2 Johns. Ch. 523 ; Frost v. Raymond, 2 Caines, 188 ; Cullum v. Br. Bank of Mobile, 4 Ala. 21. If the purchase is made without fraud or warranty, with full knowledge of the defects in the title, the purchaser can have no just ground of defense against the payment of the purchase-money.— Greenleaf v. Cook, 2 Wheaton, 16. These principles are decisive of this case, covering it in all its aspects, if we inclined to the opinion that the allegations of the answer disclosed any real defect in the title. We are not inclined to that opinion, but waive a consideration of the question involved, until it is necessary to the decision of a cause. The decree of the chancellor is affirmed.