On the former appeal, Marsh et al. v. Marsh et al., 215 Ala. 571,112 So. 189, it was ruled by this court that: "One who claims title solely by virtue of or under and through a quitclaim deed is put upon notice of other equities against which said grantor would not warrant, and is not a bona fide purchaser." (Italics supplied.)
The parties had the right to rely on this utterance and try their case accordingly, and if that rule is applied to the facts of this case, neither Walter Marsh nor Boyd are innocent purchasers.
The rule of that opinion should be applied in testing the correctness of the decree of the trial court, because it was the law of the case when the decree was rendered.
On the other hand, if the rule of Gordon v. Ward (Ala. Sup.)128 So. 217,1 be now applied, appellants are deprived of the right to meet the defense of bona fide purchasers, by showing notice to Boyd and Marsh by other evidence than the quitclaim deed, and tend to destroy public faith in the law as declared by this court.
Although the court was within its rights in overruling the opinion promulgated on the former appeal, and it was its duty to do so, the law should be so applied as not to destroy the rights of the parties or their faith in the utterances of the court.
The principle underlying the following cases compels the application of the law as declared on the former appeal to the decree under review: Bibb v. Bibb, 79 Ala. 437; Majestic Coal Co. v. Anderson, 203 Ala. 233, 82 So. 483; Farrior v. New England Mortgage Security Co., 92 Ala. 176, 9 So. 532,12 L.R.A. 856.
Therefore it is my judgment that the decree should be reversed as to both defendants, and the appellants allowed to present their case under the law as now declared, and therefore I respectfully dissent in so far as the decree is affirmed as to appellee Boyd.
1 Ante, p. 173. *Page 689