majority">HEAD, J.

Judson J. Frix is the complainant, and Charles Miller and Martin Miller, the respondents in this bill. The substance of the complainant’s complaint is that, on January 15, 1892, he sold and conveyed to said Charles Miller, with covenant of warranty, 149 acres of land, which he, and those under whom he claimed, had been in possession of for more than twenty years. That the chain of his title ran regularly back, through successive conveyances, to 1821, and he and his predecessors claimed and held the property as their own, and supposed they had good titles thereto. In fact, the title to a particularly described eighty acres of the land had never passed out of the United States, and said eighty acres was still subject to entry. The said Charles Miller, on his purchase, went into possession, and remained in the undisturbed possession of the land, until a period so unintelligibly stated in the bill as not to be capable of being understood. Said Martin was a son of Charles Miller, who, the bill avers, was, since 1892, a member of his father’s family, residing with his father upon said land. He, Martin Miller, knew all the time, that his father had purchased the land from complainant, himself having supplied a portion of the purchase money. Sometime in the year 1894, Charles Miller and-Miller (we suppose, by the latter, is meant Martin Miller) ascertained that said eighty acres was public land open to entry. It is averred that said eighty acres lie adjacent to lands of orator, and that orator was entitled, under the laws of the United States, to acquire the title to said *479lands by the payment of $1.25 per acre, and that Charles Miller had the right, and could have acquired the title to said land, as a homestead, under the laws of the United States ; that said “Charles Miller and-Miller fraudulently kept from orator the knowledge which they had acquired that said land was public land and subject to entry; that said Charles Miller did not surrender the possession which he had acquired from orator, and made no effort to put orator back in possession of said land, but procured or permitted his son, Martin Miller, to take advantage of the possession which he had as a member of his father’s family, to enter such land as a homestead under the laws of the United States ; that said Martin Miller, on the — day of-, by and with the knowledge and consent of his father, entered said land and received a receiver’s receipt for the entry fees.” Until this occurred orator had no actual notice that the land was public land, but he believed he had , conveyed to Charles Miller a perfect title.

• On August 29, 1895, said Charles Miller commenced an action at law against the complainant for the breach of the covenant of warranty, alleging eviction by said Martin Miller under his paramount title acquired from the United States, as aforesaid ; which suit is still pending. The bill avers that orator “has frequently offered, and now7' offers to perfect the title to said land by the payment of all costs and expenses that may be necessary to procure the title from the United States, either in orator as owner of an adjoining farm, or in said Miller as a homestead; or otherwise to procure the title from the United States. The said Charles Miller has constantly refused to accept such propositions, and persists in pressing his said suit.”

The complainant submits himself to the jurisdiction of the court, and offers to do all things necessary, under the direction of the court, to procure and perfect the title to said land in said Charles Miller, and to pay all costs and expenses necessary thereto, and to do whatever, in the premises, may be required by equity and good conscience.

The special prayer is for a temporary injunction of the action at law; that “said Martin Miller hold the title (he may acquire when completed and patent issued therefor) for said entry of said land, ^s a, *480trustee for said Charles Miller, in so far as to limit said Charles Miller’s recovery upon his claim for breach of covenant of warranty, to the costs and expenses of acquiring the title from the United States;” that the amount of such costs and expenses be ascertained, and, upon payment of the same by orator, that the action at 'law be perpetually enjoined. There is a prayer for general relief.

The chancellor sustained a motion to dissolve the injunction, and also to dismiss the bill for want of equity. The appeal is from that action. There were demurrers to the bill, but they were not passed upon.

The gist of the complaint (though in some respects vaguely and imperfectly expressed) appears to be that it was the duty of Charles Miller, to the complainant, when he learned that the eighty acres were public land, to have entered it as a homestead, and thus have perfected the title which complainant had undertaken to grant him ; or to have communicated to the complainant the information that he had received that the land was public land, affording complainant an opportunity, as adjacent owner, to purchase the eighty acres from the government, at $1.25 per acre, and thereby perfecting Miller’s title ; that Miller failed to perform this duty, but, with his son, fraudulently withheld said information, and aided and abetted his son, for some use or benefit to himself, to secretly enter the land. Wherefore, in equity, the said Charles Miller should be treated as having perfected his title in one or the other of these methods, and his damage for the breach of the covenant of warranty limited to the sum necessary to his reimbursement, which sum he offers to pay, and obtain perpetual injunction of the action for the breach. We say this seems to be the general scope and object of the bill, though its allegations and prayer are somewhat vague and imperfect, rendering the bill demurrable. If the bill, thus considered, contains equity, the motion to dismiss for the want of equity, should not have been sustained, notwithstanding the demurrable defects. The latter might be cured by amendment.

We remark, in the first place, that it is too obvious for discussion, that Charles Miller was under no sort of duty or obligation, legal or equitable, to Frix, to assume and carry out the duties, obligations and burdens of *481entering the land, in question, as a homestead; so that phase of the hill gives it no equity.

The bill in its other aspect, when its whole frame is considered, relies for its equity, as we have indicated, upon the theory that, by fraud and collusion between them, Martin Miller entered the land really for the use of Charles Miller and that the alleged eviction was collusive and fraudulent; hence Charles Miller is entitled only to reimbursement of the cost of entering the land. If the bill does not mean this it means nothing favorable to complainant. Upon any other theory it is without a shadow of equity. If such were the character of the entry and eviction, it is obvious that Charles Miller has no right of action at law for breach of the covenant, as upon an eviction by Martin Miller, under title paramount, whereby his damages would be measured upon the basis of the total loss of the eighty acres, for the reason that, in such case, the eviction was only pretended and not real. A collusive eviction is of no force or effect in an action for a breach of warranty. If the collusion appears, the action cannot be sustained.—Davis v. Smith, 5 Ga. 247; s. c. 48 Am. Dec. 279.

Whether, in a proper action, the covenantee guilty of such collusion, may recover for the cost of entering the land under the general principle that a vendee, buying in a paramount title, may sue upon the covenant of warranty and recover the amount paid by him for such title, not exceeding the original purchase money and interest, we do not now decide. The action here sought to be enjoined is not of that character. It is for the loss of the land by eviction under a paramount title.

Hence, it is manifest that the grievance complained of, if meritorious at all, is one of purely legal cognizance pleadable in bar of the action at law.

If, without fraud or collusion with Charles Miller, Martin Miller entered the land for his own use — no use, trust or benefit to accrue therefrom to Charles Miller— the fact that he and Charles Miller failed to communicate to complainant their information that the land was public land, would not affect Charles Miller’s right of action for breach of the warranty, if he was evicted by Martin Miller, or surrendered possession to him under his paramount title so acquired.—Copeland v. McAdory, 100 Ala. 553.

*482There is no equity in the bill, and the decree of the chancellor dissolving the injunction and dismissing the bill for want- of equity is affirmed.

Affirmed.

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