motion to dismiss for want of equity), there was no fraud, or misrepresentation, in whatever of negotiation may have preceded, or was coincident with the execution of the conveyance. Nor can the bill be taken as averring a want of title in the vendor. All that is averred is imperfection, error, or mistake in the description of the land as conveyed, the like imperfection or error existing in the conveyance through which the vendor deducted title. Such imperfections are not of infrequent occurrence in the conveyances of land-they do not impair or destroy title. They affect the conveyance, and may render it imperfect, inconclusive as a muniment or evidence of title, upon which legal remedies for the recovery of possession may be supported: 2 Devlin on Deeds, sec. 1010. A court of equity, at the instance of a proper party, will intervene and reform the conveyance, making it evidence of the title by a correct description of the land, if the parties will not voluntarily cure the imperfection. It was the duty of the appellant, on the request of the appellee, to have cured the imperfect description of the land. The imperfection embarrassed alienation, and was calculated to produce in the mind of the appellee a sense of uneasiness and insecurity. The neglect of the appellant was a breach of the covenants of warranty, entitling the appellee to resort to a court of equity for a reformation of the conveyance; and whatever of reasonable expenses he may have incurred in perfecting the title would have been recoverable of the appellant, upon the same principle, that a grantor is bound to reimburse the grantee for removing a paramount title or encumbrance: 3 Sedgwick on Damages, 8th ed., sec. 979. Protected by the covenants of warranty, the appellee has no equity to insist that the delinquency 542 of the appellant is cause of rescission; a mere breach of the covenants of warranty is not cause of rescission.

The theory of a mortgage prevailing in this state is, that as between mortgagor and mortgagee, it passes to the mortgagee the estate in the land. It is more than a mere security for a debt; it passes the title, under which the mortgagee may take immediate possession, unless it appears by express stipulation, or necessary implication, that the mortgagor may remain in possession until default. After the law day, the legal estate is absolutely vested in the mortgagee, and the mortgagor has nothing left but an equity of redemption. A conveyance by the mortgagee will pass the legal title, though the debt be not assigned. But as against all the world, except the mortgagee and his assigns, the mortgagor is regarded as the owner, entitled to

the possession: 2 Jones on Mortgages, sec. 18; Paulling v. Barron, 32 Ala. 9; Barker v. Bell, 37 Ala. 354; Knox v. Easton, 38 Ala. 345; Welsh v. Phillips, 54 Ala. 309; 25 Am. Rep. 679; Toomer v. Randolph, 60 Ala. 357. At the time of the conveyance to Mann, the condition of the mortgage had been broken; it was broken by the default of the appellee in paying either of the promissory notes, payment of which the mortgage was intended to secure, two of which were past due, and had been reduced to judgments at law. It is, perhaps, a necessary implication that it was contemplated the mortgagor should remain in undisturbed possession until there was default in the payment of the notes as they severally matured. But the default had occurred, the right of the mortgagee had accrued, and, without affecting the equity of redemption, all that remained to the mortgagor, the mortgagee could rightfully sell and convey the legal estate, passing his right of entry: Welsh v. Phillips, 54 Ala. 309; 25 Am. Rep. 679; 2 Washburn on Real Property, c. 16, sec. 4; 2 Jones on Mortgages, sec. 808. The conveyance to Mann recites on its face: "This land is subject to redemption by A. J. Clayton." And if it had not, as against the appellee, it would have passed only the legal estate, not embarrassing the equity of redemption. The grantee, entering into possession under it, stands in the relation in which the grantor would have stood, if he had entered-a mortgagee in possession before foreclosure, holding possession as a trustee for the mortgagor, bound to preserve the premises from waste, 543 and to apply the rents and profits to the payment of the mortgage debt. The conveyance was not intended, and cannot operate, as a rescission of the contract of purchase-it was not in hostility to the equity of redemption, but in recognition of it. Nor can it be regarded as an election to accept the proposition of the appellee, to surrender possession and rescind upon the delivery and cancellation of the mortgage and notes. Acceptance of that proposition is negatived by the recital of the conveyance that the land was subject to redemption by the appellee-it would not have been subject to redemption if there had been acceptance of the proposition.

In any view of the bill, construing the allegations most favorably to the appellee, we cannot declare that it presents a case of equitable cognizance, and are constrained to the conclusion that the motion to dismiss should have been sustained.

The decree of the chancellor must be reversed, and a decree rendered dismissing the bill for want of equity.

ON

VENDOR AND PURCHASER-RESCISSION-REMEDY COVENANTS.-A grantee of land conveyed with warranty has a remedy upon the covenants of his deed for failure of title, and, if a perfect title is tendered by the grantor before a decree is rendered, the contract will not be rescinded unless it appears to the court that the grantee has sustained some loss, injury, or damage, by reason of the delay in perfecting the title: Bradtfeldt v. Cook, 27 Or. 194; 50 Am. St. Rep. 701. Compare Parham v. Randolph, 4. How. 435; 35 Am. Dec. 403.

MORTGAGE-TRANSFER OF TITLE.-Between the parties, a mortgage transfers the legal title, defeasible on performance of the conditions, and the right of immediate possession, unless by its terms possession is reserved in the mortgagor for an unexpired term. As to the mortgagee, the mortgagor has only an equity, but as to all persons except the mortgagee and those claiming in his right the mortgagor is the owner of the fee and has title under which he may maintain ejectment against strangers who have no connection with the title of the mortgagee, and the defendant in ejectment will not be allowed to set up such outstanding title to defeat the action: Cotton v. Carlisle, 85 Ala. 175; 7 Am. St. Rep. 29, and extended note. As to the nature of a mortgage contract, see Goodenow v. Ewer, 16 Cal. 461; 76 Am. Dec. 540; Blunt v. Walker, 11 Wis. 334; 78 Am. Dec. 709; Dutton v. Warschauer, 21 Cal. 609; 82 Am. Dec. 765, and notes. At common law, a mortgage transferred the legal title to the mortgagee: Smith v. Kelley, 27 Me. 237; 46 Am. Dec. 595; Drayton v. Marshall, Rice Eq. 373; 33 Am. Dec. 84; while under the modern equity rule a mortgage is regarded merely as a security, and the mortgagee has but a chattel interest: Freeman v. Bass, 34 Ga. 355; 89 Am. Dec. 255; Hall v. Savill, 3 G. Greene, 37; 54 Am. Dec. 485; Runyan v. Mersereau, 11 Johns. 534; 6 Am. Dec. 393.

BABCOCK V. CARTER.

[117 ALABAMA, 575.]

SUNDAY.-AN APPEAL BOND SIGNED ON Sunday, but delivered on a week-day to the clerk of the court, to whom it was made payable and by whom it was approved and accepted, created no liability until it was delivered, and therefore is not void as being executed on Sunday.

APPEAL BOND-IRREGULARITIES IN DO NOT MAKE VOID.-The fact that an undertaking on appeal was made payable to the clerk of the court instead of to the plaintiff in the judgment does not make it void. The sureties are, therefore, liable thereon.

A JUDGMENT AGAINST ONE SURETY IS ADMISSIBLE In an action by him against his cosurety for contribution for the purpose of proving its rendition and by way of inducement as evidence that the liability on which it was founded had been paid by the plaintiff.

PRACTICE.-PARTIES IN CHANCERY MUST REDUCE TO WRITING OBJECTIONS to the admissibility of evidence incorporating them in the note of submission or otherwise call them directly to the attention of the chancellor. Otherwise, such objec tions are deemed to have been waived.

PAROL EVIDENCE-SURETIES IN SUIT BY FOR CONTRIBUTION.-The fact that a judgment against a surety on an AM. ST. REP., VOL. LXVII.-13

approval bond was recovered in the name of the plaintiff in such judgment, when it should have been in the name of the clerk of the court for the use of such plaintiff, does not constitute any defense in an action by such surety against his cosurety for contribution.

Parks & Harmon, for the appellant.

Gamble & Bricken and D. M. Powell, contra.

577 BRICKELL, C. J. The original bill, in which the appellant was complainant, was filed to compel the defendants, 578 the appellees, his cosureties, to contribute to his reimbursement moneys he had paid in satisfaction of the common obligation or liability. By way of plea, incorporated in the answer, the defendants alleged in defense that the bond, constituting the common liability, was executed by them on Sunday. Much of the evidence introduced by the defendants was in proof of the fact that the bond was signed by them on Sunday, and the record is not without indications that the stress of controversy in the court below was whether the fact of the signing on Sunday did not render the bond invalid as to the defendants. However that may be, the uncontradicted evidence is, that the bond was delivered on a week day to the clerk of the court, to whom it was payable, and by whom it was approved, and by the approval accepted. Until the delivery, the bond did not pass from the dominion of the signers-it was of no force, creating no liability; there remained to each of the signers the locus penitentiae, and he could have intercepted the delivery, preventing it from becoming a contract or obligation. To have rendered it subject to the interdiction of the statute, it must not only have been signed but delivered on Sunday: Flanagan v. Meyer, 41 Ala. 132; Lovejoy v. Whipple, 18 Vt. 379; 46 Am. Dec. 157.

The bond should have been made payable to Bolling, the plaintiff in the judgment, execution of which was superseded, and not to Worthy, the clerk of the circuit court-this is the requirement of the statute: Code 1886, sec. 3624; Code 1896, sec. 441. This departure from the statute does not render the bond void. The principle is familiar, and has been of frequent application to bonds taken by ministerial officers in the course of judicial proceedings, and intended to be taken in compliance with statutory requirements, though departing from them, may be valid as common-law obligations; and will be, if voluntary, founded on a valuable consideration, and not in condition violative of law: 1 Brickell's Digest, sec. 46, p. 309; 3 Brickell's Digest, sec. 1, et seq., p. 98. The action on the bond, in which

the judgment against the appellant was recovered, ought to have been instituted and prosecuted, not in the name of Bolling only, but in the name of Worthy for the use of Bolling. The bond was payable to Worthy, and, not being a contract 579 for the payment of money only, was not within the influence of the statute (Code 1886, sec. 2594; Code 1896, sec. 28), requiring suits to be prosecuted in the name of the party really interested, whether he has the legal title or not. This was a mere informality, capable of being cured by an amendment of the complaint, if objected to, at any time before judgment: Dwyer v. Kennemore, 31 Ala. 404; Harris v. Plant, 31 Ala. 639; Johnson v. Martin, 54 Ala. 271; American Union Tel. Co. v. Daughtery, 89 Ala. 191. If the amendment had been made. Bolling would have been considered the only party on the record (Code 1886, sec. 2595; Code 1896, sec. 29), and he alone could have received satisfaction of the judgment. A demurrer because of the informality the appellant could have interposed, but in no event would it have been availing for any other purpose than mere delay; and the result would have been that a judgment having the same legal operation and effect of that which was rendered would have been rendered.

The graver question is, whether it is shown that the common liability had accrued, becoming an existing cause of action, before the appellant made the payment to Bolling. The liability was contingent; it could not ripen into an absolute liability until there was a breach of the condition-the failure of the principal Giddens to prosecute to effect the appeal he had taken to this court. The purpose of the appeal was the reversal of the judgment rendered by the circuit court, and the reversal was the effect to which the principal was bound to prosecute the appeal; otherwise, the condition of the bond was broken, and the liability of the parties upon it was freed from all contingency. It is rather suggested than insisted in the argument of counsel that the bill avers that the appeal was prosecuted to effect. The averment, if it is not, as it appears in the record before us, a mere clerical error in transcribing, is rather loose and uncertain, but, taken as a whole, it cannot be fairly interpreted as averring that the appeal was prosecuted to effect; for the controlling part of it is the clear, unequivocal statement of the affirmance in this court of the judgment from which the appeal was taken.

The unverified answer of the defendants, by a mere disclaimer of all knowledge or information of the alleged affirm.