VAUGHAN AND HATCHER, Adm'rs., vs. HOLMES' AND WEST'S HEIRS, 22 Ala. 593

GrOLDTHWAITE, J. The land is unquestionably bound for the purchase money, until a decree is made divesting the legal title, (Foster v. Trustees of the Athenæum, 3 Ala. 302;) and the only interest which the heirs of West have in the land, is the right to demand a legal title upon the payment of the notes given by their intestate for the purchase money.

This right is equitable assets, belonging to the estate of West, and if sold, the proceeds must be appropriated in the same manner as other assets belonging to tbe estate; and neither the Probate Court nor the Court of Chancery would have the right to direct the appropriation of these assets to the payment of the notes for the purchase money given by West, in preference to the other demands against his estate.

We can see very clearly that the sale of an equity of this nature by the Probate Court might, upon the case made by the bill, greatly prejudice the estate; and if the question was before us for the first time, we should be disposed to hold, that that court could not, under the authority given it for the sale of lands, direct the sale of an inchoate equity like this; but the rule has been too firmly settled by the former adjudications of this court, to allow us to depart from it. Perkins v. Winter, 7 Ala. 855; Duval v. The P. & M. Bank, 10 ib. 636; Duval v. McLosky, 1 ib. 708; Jennings v. Jenkins, 9 ib. 285.

To avoid the injurious results of this rule, application is made to the Court of Chancery, to invest the heirs of West with the legal title to the lands, with the view of benefitting that estate, by thus putting the lands in a condition as to title which would hold out stronger inducements to purchasers. In other words, the court is asked to take the legal title from the heirs of Holmes, and vest it in the heirs of West, in order to increase the assets of the last estate.

The mortgagor cannot come into a court of equity to redeem, without the payment of, or the offer to pay, the mortgage debt; and so, if the application had been made directly by the heirs of West, to invest them with the legal title, in order that they might sell the lands, the court would not aid them until the purchase money had been paid.

Suppose the heirs of Holmes divested of the legal title, and the lands sold under the decree, at a less sum than the amount for which they were already bound, on the notes given on the first sale; the last buyer, on the payment of the purchase money, would get the title, and for the difference in amount between the two sales, the only security would be the notes of West. It is no answer to say this will not happen. The operation of the decree would be, to deprive those interested in the estate of Holmes of a separate and distinct security for the purchase money.

They have a right to all the securities which the law allows them, and the Court of Chancery cannot impair this right for the benefit of third persons. The fact that the administrator of Holmes joins in the application, can make no difference, as he does not represent the interest of the heir in the real estate, except so far as he is authorized to do so by the statute. Any other person might as well make the application as he. There would be no difficulty, if the heir was of full age, and consented; but she is a minor, and cannot consent to

an act which would not result to her benefit; and the court, acting as the guardian of her interests, would not become the instrument to deprive her of her rights, and, if injured, turn her over to the personal representative for redress. The bill shows that the heir of Holmes is the widow of West; but that cannot change the case, as it also appears that the latter left a child, who is made a party, and Mrs. West, as the only heir of her father’s estate, may have a greater interest in preserving the lien, than in discharging it as one of the parties interested in the estate of her husband.

The case may be a hard one upon the estate of West; but upon the case made, equity could not give relief. The decree of the Chancellor must be affirmed, with the costs of this court, against the plaintiffs in error.