Insistence is made that the decision is in conflict with Caldwell v. Caldwell, 166 Ala. 406, 52 So. 323, 139 Am. St. Rep. 48. In that case the bill sought to enjoin foreclosure under power of sale upon the ground that the mortgagor held a demand against the mortgagee which was sought to be set off against the mortgage debt. In the absence of averment of insolvency of the mortgagee, or other showing of inadequacy of a remedy at law, the bill was held to be without equity. The case is inapplicable here. Appellant assumes the equity of the present bill rests alone upon a right to set-off. The opinion undertakes to make clear that the equity of the bill, in the first instance, is rested upon a right of redemption in equity avoiding the effect of a forfeiture, and dealing with the conditional sale contract as in the nature of a mortgage. The detinue statute now undertakes to afford a like remedy at law, and if it were adequate in the particular case, there could be no occasion to enjoin such suit and effect the same result in equity. This detinue statute recognizes as of right all defenses except the statute of limitations. In this instance it was ruled in the detinue suit that the set-off existed against the equitable owner of the note and not against the plaintiff holding the legal title, although the suit was for the benefit of the party against whom the set-off was held. Hence the full benefit of the relief recognized by statute could not be had in the detinue suit. This ruling estopped appellant from asserting there was an adequate remedy to effect a set-off in the detinue suit. This right of set-off under the facts is an incident to the relief in equity by way of redemption.
Application overruled. *Page 584