[Munford v. Pearce.] presumption of fraud, therefore, based on that ground, would be repelled; and it would be sufficient, if the vendor have title when the appellant is in condition to demand a deed of conveyance, by offering to pay the notes due for the purchasemoney.-Teague v. Wade, 59 Ala. 369. The possession of the appellant to these lands has, moreover, never been disturbed, but he has enjoyed their use and occupation without hindrance or molestation. If he desired to retain the lands, and obtain a conveyance of the legal title, a cross-bill was the proper remedy.-Broughton v. Mitchell, 64 Ala. 210. So, if he desired relief on the ground of fraud, mistake or warranty, or indemnity for part payment of the purchase-money or the construction of valuable improvements, the insolvency of the vendor being alleged, he might, by proper proof, have obtained relief by cross-bill.-Tobin v. McMahon, 61 Ala. 125; Fore v. McKenzie, 58 Ala. 115; Burkett v. Munford, at the present terin. In the absence of these equities, a defendant is not permitted to hold possession under the faith of his purchase, and defend against the enforcement of a vendor's lien for the purchasemoney.-2 Brick. Dig. 512, $$ 83, et seq. The appellant was clearly estopped from setting up adversely to the appellee, who was his vendor, the title which he acquired at the administrator's sale made by Knox Lee, under the order of the Probate Court. He was in possession of the lands under the purchase from appellant; and the irresistible inference from the entire testimony and all the facts of the case is, that this purchase was made, by agreement of parties, merely for the purpose of perfecting the title. The land was worth about two thousand dollars, and the amount paid by Munford for the title obtained at the administrator's sale was only the nominal sum of twenty-two dollars. It does not appear that he ever thought of referring his possession to this title, until the institution of this present suit. He is precluded, under this state of facts, from disputing the title of his vendor from whom his possession was acquired.-Bliss v. Smith, 1 Ala. 273; Helvenstein v. Higgason, 35 Ala. 259. There was no necessity to make either the administrator of Augustus Pearce, or his heirs at law, parties to this suit, under the peculiar facts of the case. The bill itself does not show that any one had any interest in the lands described, except such as the appellee was authorized to sell and convey by authority of a special act of the legislature.-Acts 1872-3, p. 154. The bond for title, under which Munford took possession, and made the purchase, recognizes the authority of the appellee to sell and convey, and, by necessary implication, to receive the purchase-money, by virtue of the power conferred by this [Fields v. Helms.] special act. The proof, furthermore, shows that the title of the heirs was devested by the sale made by Knox Lee, under the order of the Probate Court. The rower of the legislature to pass acts of this nature, authorizing a sale or disposition of property belonging to minors, for their benefit, may be now considered so firmly settled as to constitute a rule of property in this State. It can, therefore, no longer be questioned, at least, in those instances where the act was passed prior to the present constitution, of 1875. How the case might be under the influence of section 23, of article 4, of this constitution, inhibiting the General Assembly from passing special laws, for the benefit of individuals, in certain contingencies we need not now decide.-Tindal v. Drake, 60 Ala. 170-178; Todd v. Flournoy, 56 Ala. 99. The decree of the chancellor must be affirmed. Fields v. Helms. Bill in Equity for Cancellation of Mortgage, or Redemption. 1. Filing bill in double aspect.-A bill in equity may be filed in a double aspect, when the alternative prayers are not founded on inconsistent titles, and the alternative relief is of the same kind and nature. 2. Same, by mortgagor.-A mortgagor may file a bill in a double aspect, averring full payment of the mortgage debt, and yet offering to pay any balance that may be found due on the statement of the account, and praying for a cancellation of the mortgage, or for an account and redemption. APPEAL from the Chancery Court of Blount. The original bill in this case was filed on the 24th May, 1880, by Bales Helms, against A. E. Fields and Lemuel Bentley, and sought equitable relief against two mortgages; one of which was executed by the complainant to said Bentley, and the other to said Fields. The mortgage to Bentley was executed on the 5th December, 1873, to secure several promissory notes given for the purchase-money of a tract of land; and this mortgage, with the secured notes, after several partial payments had been made, was transferred by Bentley to Fields, to whom a new mortgage and notes were afterwards executed, including, as the bill alleged, a loan of money and usurious interest. The bills, original and amended, alleged that the notes were fully paid, with legal interest; and the complainant offered to pay any [Fields v. Helms.] balance that might be found unpaid on the statement of the account. The bill prayed, "1st, that it be referred to the regis ter to take and state an account, ascertain and report what sum of money, principal and interest, if any, may be found due from complainant to said Abijah E. Fields; 2d, that if, on the statement of the account as above prayed, it be found that your orator has paid the said A. E. Fields the amount justly due him on said two promissory notes payable to said Bentley, that said mortgages be decreed to be cancelled and delivered up to your orator; 3d, that the court grant such other and further relief to your orator as may accord with the law of the land and the practice of the court." The chancellor overruled a demurrer to the bill for want of equity, and a motion to dismiss it, "because said bill, as amended, unites distinct cause of action in the alternative, requiring different relief;" and his decree is now assigned as error. HAMILL & DICKINSON, for appellant.-Alternative averments and prayers in a bill are only allowed when they are "the foundation for precisely the same relief."- Warehouse Co. v. Jones, 62 Ala. 553; Gordon's Adm'r v. Ross, 63 Ala. 363; Micou v. Ashurst, 55 Ala. 607. The leading object of the bill, here, is a cancellation of the mortgage, on the ground that the debt has been overpaid; and the secondary object is an account and redemption, if the secured debt has not been paid. The decree for relief, under these alternative averments and prayers, is essentially distinct and different.- Waller v. Harris, 7 Paige, 167; Shannon v. Speers, 2 A. K. Mar. 312; Perine v. Dunn, 4 John. Ch. 140. Suppose the bill had been confessed by the defendant, what decree would the court render?-55 Ala. 607. W. J. HARALSON, and JOHN A. LUSK, contra, cited Micon v. Ashurst, 55 Ala. 611; 7 Porter, 144; 11 Ala. 325; 35 Ala. 380; 1 Dan. Ch. Pl. & Pr. 384--5, 5th ed.; Bispham's Equity, $ 43, 222; 1 Brick. Digest, 701, § 901; 2 Ib. 127, § 120. BRICKELL, C. J.-The precise point of the motion to dismiss the bill for want of equity is, that it avers payment in full of the mortgage debt, aud yet avers that, if in the fact of full payment the complainant should be mistaken, he is ready and willing to make, and offers payment of any balance of the debt which may be found unpaid; and in either aspect relief is prayed. A bill, with such alternative, inconsistent averments and prayers, it is argued, can not be maintained. The general rule of equity pleading is, that if a complainant is not certain of his title to the specific relief he wishes to pray for, the prayer of the bill may be so framed that, if one species of relief is de [Fields v. Helms.] nied, another may be granted. The limitation of the rule, as was stated in Micou v. Ashurst, 55 Ala. 607, is, that the alternative prayer must not be founded on inconsistent titles, and the relief must be of the same kind and nature. The illustration of the limitation given in 1 Dan. Ch. Pr. 385, is very apt: "A plaintiff can not assert a will to be invalid, and at the same time claim to take a benefit on the assumption of its validity." Another apt illustration is found in Shields v. Barrow, 17 How. (U. S.) 130, where one of the prayers of the bill was, to set aside a contract on the ground of fraud, and another was that, if the contract was valid, specific performance of it should be enforced; the bill, praying for repugnant, inconsistent relief, was dismissed. Admitting the present bill to be framed with a double aspect, and that it prays for alternative relief, the title of the complainant is the same, and the relief prayed is of the same naturé and character. A mortgagor who, after the law-day of the mortgage, pays the mortgage debt, has no other remedy to divest the legal estate which has become absolute in the mortgagee, and to re-invest himself with it, than by bill in equity. The bill is essentially a bill to redeem. The right and title to relief springs from the nature and character of a mortgage in the contemplation of a court of equity; that it is, and shall stand, though its condition is broken, as a mere security for a debt. Though full payment of the mortgage debt may be averred, it is not unusual, and it is more appropriate, that the complainant should offer to pay any balance found due on the debt. 2 Jones Mort. § 1093. If the offer was not made, it would, perhaps, lie within the power of the court to impose as terms and conditions, upon which redemption could be had, the payment within a specified time of the unpaid balance of the debt, or that the bill be dismissed.-Beach v. Cooke, 28 N. Y. 508. However that may be, when the bill contains the offer, the power of the court is undoubted. The object and purpose of the bill is single-the redemption from the mortgage. If the debt has been fully paid, the complainant is entitled to relief, without terms or conditions. If a balance of the debt remains unpaid, to the same relief, upon the same title, and in the same right, he is entitled, on such terms and conditions as the court may impose for the payment of such balance. The case is of that precise character, in which a bill is properly framed in a double aspect, with alternative prayers for relief. Affirmed. VOL. LXX. [Ridley & Wife y. Ennis & Wife.] Ridley & Wife v. Ennis & Wife. Bill in Equity for Specific Performance of Contract for Exchange of Lands. 1. Exchange of lands belonging to statutory estates of married women; specific performance of contract for.-On bill filed for the specific execution of a contract between two married women, with the assent and concurrence of their respective husbands as parties, for an exchange of lands belonging to their respective statutory estates, possession having been delivered and taken under the contract; the court declares, “We do not and will not undertake to decide what would be our ruling, if the bill showed that nothing remained to be done but to execute, reciprocal conveyances." But, if the contract expressly stipulates that the defendants, in addition to conveying the tract of land owned by the wife, "shall, by proper instrument in writing, secure said E. and wife [complainants] against all loss by reason of an apprehended defect in the title, by lien on the land conveyed by them" on the exchange; and the bill shows that the tender of a deed, signed by the complainants, was accompanied with the tender of a mortgage on the lands, to be signed by the defendants pursuant to this stipulation, the wife having no power to execute such mortgage, the complainants do not make out a case for specific performance. 2. Insurance; right to money paid on loss, as between person insuring and mortgagee.—When a person effects an insurance on a house in which he has an insurable interest, pays the premium, and receives the money paid on a loss, a mortgagee of the property, showing no interest in the policy by assignment or otherwise, can not assert any claim to the money. 3. Averments of bill construed.-An averment that a suit in equity is pending against the administrator of R., with others, "in which suit the title to said lands is involved and litigated," is not equivalent to an averment that said lands are subject to any charge or liability for the debts of R." APPEAL from the Chancery Court of Madison. Heard before the Hon. N. S. GRAHAM. The bill in this case was filed on the 10th September, 1879, by John C. Ennis and Sarah A. Ennis, who were husband and wife, against James L. and Fannie J. Ridley, also husband and wife; and sought, principally, the specific performance of a contract, made and entered into by the parties on the 19th December, 1872, for an exchange of lands. The contract was reduced to writing, signed by all the parties in duplicate, with their seals attached, and attested by two witnesses; and a copy of it was made an exhibit to the bill. The lands in the possession of Ennis and wife, and which they were to convey to Ridley and wife (or to Mrs. Ridley), consisted of several lots in the city of Huntsville, which belonged to the estate of John H. |