The original hill in this cause was filed against the purchaser of a certain interest in a tract of land owned by complainant’s intestate and sought the foreclosure of a mortgage executed to secure a purchase money note. It was subsequently amended by making the Turner Coal Company, a corporation, to whom the purchaser sold his interest in the land, a party respondent.

Complainant’s intestate executed to R. H. Turner, the purchaser from him, a warranty deed and Turner in his deed to the Turner Coal Company also warranted the title.

The defense relied upon by Turner and the Coal Company is a breach of warranty, not as to the whole estate undertaken to be conveyed by the vendor and owner of the land, but as to a certain portion of the property described in the deed, to-wit; the right to cut and to the use of timber upon the land for the purpose of mining, etc. Prior to the acquisition of this deed, complainant’s intestate, it appears, had conveyed this timber to one Glover who was in possession of it when the bill was filed and, indeed, when Turner made his purchase and received his deed.

The respondent Coal Company, after getting its deed from Turner, went upon the lands and cut from it a number of trees for which it was made liable in an action brought by Glover to recover the penalty provided bv § 4137 of the Code.

One element of damages sought to be recovered by the respondents by way of set-off and claimed in their cross-bill is the judgment Glover recovered against the Coal. Company amounting to $2,415.09 and the cost of the suit, at least to the extent of the complainant’s demand.

The chancellor held that they were entitled to the difference in the market value of that portion of the land with the right to cut and use the trees and saplings thereon for mines and mining purposes, ■ and the market value of that portion of said land without such timber rights. The effect of this holding was to deny to the re*436.spondents the right to have the mortgage debt sought to be enforced extinguished or abated by the judgment. In this ruling, the chancellor was correct.

If it could he affirmed, which it cannot, that the statutory penalties incurred by the Coal Company are recoverable damags for a breach of the covenant of warranty made by Turner’s vendor .to him, the conveyance by Turner to the Coal Company did not operate as an assignment of his right of action for a breach of that covenant which was broken when made. — Pinckard v. American Freehold Land oMrtgage Co., (Ala.) 39 South. 350.

Indeed, the Coal Company not being the owner of the damages sustained by Turner by a breach of the covenant which is a mere chose in action, is not entitled to. have the mortgage debt abated at all. And Turner not being a party to the judgment, and therefore, not liable for the penalty recovered by Glover, is certainly not entitled to set it off against the complainant’s demand. Moreover, had he been a party to the judgment, it is clear to us that he would not be entitled to abate the recovery against him on that account. He would not he permitted to voluntarily incur the penalty and mulct his vendor for the whole or a part of it. Such conduct would not he in defense of the seisin, but would he wrongful and unlawful. — Cushman v. Blanchard, 11 Am. Dec. 76.

It is of no consequence that these damages are claimed in the cross-bill and that issue was taken upon it after the demurrer to it had been overruled. If they are non recoverable as a matter of law, the court properly disallowed them.

It is next insisted that the amount of the damages suffered by the respondents and allowed by the court, which was deducted from the mortgage debt was too small. This matter was referred to the register and some of the testimony upon which he based his finding is not in the record. It is impossible, therefore, to affirm that, his conclusion was erroneous. The decree appealed from must be

Affirmed.