Tomlinson v. Watkins

STONE, C. J.' It is very questionable if the possession of the complainant was not acquired under such circumstances as [402] that chancery will not lend its aid for its protection. — Turnley v. Hanna, 67 Ala. 101. One purpose of this bill is to avoid the force of a conveyance to Bryant Johnson, made by Tomlinson and wife (the latter the complainant in this suit) in April, 1873. That deed conveyed only an undivided half interest in the lands in controversy. The averments of the bill do not make a case for setting aside that conveyance; and if they did, there is a fatal want of proof to make out this feature of the case. — Miller v. Marx, 55 Ala. 322; Coleman v. Smith, Ib. 368 ; Dawson v. Burrus, 73 Ala. 111; Yonge v. Hooper, Ib. 119. Johnson and wife conveyed the property to "Watkins, the appellee, and thereby conveyed to him all the title acquired by the deed of Tomlinson and wife. This was, at least, á conveyance of the legal title to an undivided half of the land. The chancellor did not err in refusing to vacate the deed to Watkins, for more reasons than one. First, it vested a legal title in the latter, subject, perhaps, to any claims Mrs. Tomlinson may have under the contract with Johnson. If it be supposed the legal title had re-vested in Mrs. Tomlinson, because the mortgage given by Johnson was over-due, and not paid, the answer is two-fold : The mortgage is made to W. D. Tomlin-son and Cunningham — not to her; and in equity, a mortgage is only a security for money, and this is a proceeding in equity. Toomer v. Randolph, 60 Ala. 356. Second, the deed contains covenants of warranty, giving to Watkins a right of action against Johnson, in the event of his eviction. The bill in this case, as framed, entitles the complainant to no relief, and the chancellor did not err in dismissing it. It would seem that Mi’s. Tomlinson, if she desires it, is entitled to a quit-claim re-conveyance of an undivided half of the land, or a declaration that the deed to Watkins vests in him only an undivided half interest. ITe claims only that much. But this bill is wanting in necessary frame and averments to obtain such relief. It may be, also, that she can enforce her claim for the purchase-money promised by Johnson, and never paid by him; but it seems W. D. Tomlinson emploj'ed those notes in re-purchasing the lands in joint adventure with Watkins. That half interest, it is shown, was purchased for Mrs. Tomlinson’s benefit. This record fails to show that Watkins has violated any of the stipulations he entered into. The decree of the chancellor is affirmed.