The controlling question in this case is as to the legal effect of the sale and conveyance by the executors of Hugh Jackson to W. O. Abbott, and the contemporaneous mortgage given by Abbott to said executors to secure the purchase-money notes for the lot conveyed to him, said mortgage embracing several other lots, the property of Abbott, as well as the lot bought by him.
Our opinion is, that the legal effect of these instruments was to make the contract executory, and that the superior title to the lot remained in the heirs and executors of the estate of Hugh Jackson, entitling them to recover possession, although the purchase-money notes were barred. We see nothing in the fact that the mortgage embraced other property, nor in the language of the mortgage, to take the case out of the rule laid down in Dunlap v. Wright, and in numerous cases following that authority. That rule is firmly established, and its operation should not be rendered uncertain by introducing an exception which seems to us mainly founded on a doubt as to the correctness of the rule itself, and a consequent disposition to limit its effect.
Although the purchase-money notes were barred, the vendees of the purchaser—Abbott having bought from one whose title was dependent on payment of the purchase-money, and having notice thereof—could not successfully resist the recovery of the lot, the purchase-money being unpaid.
If, after resisting the suit for the collection of the purchase-money and the enforcement of the mortgage on all of the .mortgaged property, the defendants have any equitable rights growing out of the laches of the plaintiffs, those equities, not having been set up in their pleadings, cannot be considered. It is .not seen, however, that they have any equity that will protect them from the legal title of plaintiffs. The plaintiffs occupied to them no such relation as imposed the-duty of diligence in the enforcement of their remedies in order to protect defendants.
Because the .court erred in refusing the first charge asked *435by plaintiffs, and in its charge as given, the judgment is reversed and the cause remanded.
[Opinion delivered January 27, 1880.]Reversed and remanded.