Most of the points presented by the record in this cause for reversion are of easy solution. The instrument exeóuted by Glassell to the vendor of the plaintiffin error, Alexander Chapman, cannot, by any fair rule of construction, pass the legal title to the land embraced in it. By its terms, it recites that the said Glassell, for and in consideration of the sum of $3600, the receipt of which is thereby acknowledged, has granted, bargained and sold unto the said Alexander Chapman, the premises, Spc., but the condition upon which the instrument is to be void is, that the said Glassell make to the said Chapman, title in fee simple to the land, &rc.
Now, contracts are to be taken and construed according to the intent of the parties, and this intent should be ascertained from the whole instrument. Ely, use, &c. v. Witherspoon, 2 Ala. R. 131. If the parties had intended this instrument to operate as a conveyance in praesenti, why does the obligor stipulate, at a future day to give, and the obligee to receive, title in fee simple to the land ? Did this construction admit of any doubt, the meaning of the parties is put beyond all question, when we consider the contemporaneous agreement signed by Alexander Chapman, which, after reciting the execution of the instrument above referred to, and designating it “a title bond,” expressly provides as a condition to be performed before he can demand title, that he is to pay certain notes outstanding against said Glassell in the hands of Edwin and Mary E. Davis. These instruments, made at the same time, in regard to the same transaction, are to be taken together. Their legal effect is that of an obligation on Glassell to make title to the land described when Alexander Chapman shall have performed the condition, in the payment or extinguishment of the notes mentioned in the agreement signed by him.
Regarding Alexander Chapman as holding under a bond for title, he had only an inchoate equity, which he could perfect by the payment of the purchase money, and being destitute of a legal title to the premises in suit, he did not, by his conveyance to the plaintiff in error vest any such title in him. Thus situated, the defendant below could not resist a recovery on the part of Glassell, the vendor, but by filing *55his bill to redeem the premises ; the vendor’s lien for the unpaid purchase money being in the nature of a mortgage.— Haley, et al. Bennett, 5 Porter, 452; Roper v. McCook, et al. 7 Ala. R. 318, and cases there cited. Nor can we perceive how the title of the plaintiff in error can be aided by the statutes referred to by the counsel. By the 20th section of the act passed in 1803, (Clay’s Dig. 156, <§> 31,) it is provided that the words, grant, bargain, sell, occurring in deeds required by the act to be recorded, shall be adjudged an express covenant to the grantee, his heirs, &c., of seizin on the part of the grantor, &o., and for quiet enjoyment. If we are right in our construction as to the legal effect of the instruments under which the plaintiff in error claims, and of this we feel no doubt, the statute above noticed can have no application to the case, as it applies to conveyances, not to bonds for title. So neither can the plaintiff in error be aided by the statute of uses, (Clay’s Dig. 156, <$> 35,) the instruments under which he claims title not coming within the description of any of the conveyances or covenants specified in the statute. The effect of this statute is, to transfer the property to the person entitled to the use, dispensing with livery of seizin. 1 Ala. Rep. 273.
It is insisted, that as Alexander Chapman went lawfully into the possession of the premises sued for, and conveyed to the plaintiff in error, who purchased without notice of any lien for the purchase money, his possession should be protected — at all events there should be a demand of possession, and notice to quit, before he is liable to be sued as a trespasser. We think the law is otherwise. Regarding the transaction in the character of a mortgage, the plaintiff in error can occupy no better condition than the mortgagor. In the language of Lord Mansfield, in Kuck v. Hall, Doug. 22, “ whoever wants to be secure when he makes a purchase, should inquire after and examine the title deeds.” Want of notice of a fact, which is the result of a want of that diligence which the law requires for its ascertainment, furnishes no ground for protection. As it respects demand of possession, or notice to quit, Mr. Powell, in his work on Mortgages, (vol. 1, p. 176, a,) lays down the doctrine, that after *56breach of the condition, the mortgagee may consider the mortgagor as tenant by sufferance, and evict him by ejectment, as an ordinary tenant of that description. He also-adds, “ that a notice to quit, or demand of possession is not necessary to the success of such ejectment.” We are strongly inclined to the opinion that such is the correct rule, even as it respects technical mortgages, although it has been ruled differently in New York; yet the Supreme court of that State have repeatedly held, that the case of a vendor suing to recover land after default of payment by the vendee, is an exception to the rule requiring notice to quit. Jackson v. Moncrief, 5 Wend. 26; Jackson v. Miller, 7 Cowen, 751, and authorities there cited. We think the circuit court very properly refused to instruct the jury, that proof of demand of possession, or notice to quit, was necessary to sustain the plaintiff’s action. See also, Jackson v. Hopkins, 19 Johns. 487. The right to maintain this action is'not at all affected by the pendency of the chancery proceedings to sell the land for the purchase money. The mortgagee has, after default of payment, the right to the possession, and having possession, has the right to foreclose. “ He may sue at law upon his bond, or covenant, at the same time he is proceeding on his mortgage in chancery, and after a foreclosure, may collect the deficiency at law.” This is regarded by Chancellor Kent, (3 Johns. C. R. 431,) as the settled law, and referred to without disapprobation in Haley, et al. v. Bennett, 5 Por. R. 471, in which last named case it was held, that the recovery by the vendor of the possession of the land, does not annul the contract.
The question as to the right of the plaintiff below to recover damages for the detention of the land, is not presented by the record, though argued at the bar. To authorize this court to consider it, the question should have been raised in the court below, in the form of instructions to the jury, or otherwise. The instructions prayed for in the court below, not being in accordance with the views here presented, the court properly refused them. Let the judgment be affirmed.