Beck v. Blue

42 Ala. 32 | Ala. | 1868

JUDGE, J.

The contract between John E. Blue and David W. Sterrett, as disclosed by the record, was a conditional sale, with a reservation of the right to the vendor to repurchase on certain agreed terms, — Freeman, Adm’r, v. Baldwin, 13 Ala. 246; Murphy v. Brassfield, 27 Ala. 634; West and Wife v. Hendrix, 28 Ala. 226; Swift v. Swift, 36 Ala. 147.

Such a sale, says Chancellor Kent, “is totally distinct, and not applicable to mortgages.” Says the same author further: “Such defeasible purchases, though narrowly watched, are valid, and to be taken strictly as independent dealings between strangers; and the.time limited for the repurchase, must be precisely observed, or the vendor’s right to reclaim his property will be lost.” — 4 Kent’s Com. 144.

There is good reason why such sales should be “narrowly watched,” and “precisely observed.” There is no obligation on the part of the vendor to repurchase. Should the property appreciate in value he may exercise his right, and realize the profit; should it depreciate in value, or be injured or destroyed, he may decline to repurchase, and permit the loss to fall exclusively"on the vendee. Such being the relative situation of the two parties to such a contract, the law requires promptness and precision on the part of the vendor in the assertion of his right to repurchase ; especially when the vendee pays a fair valuation for the property, as he did in the present case.

No definite time whs fixed by the contract we are considering, within which the right to repurchase should be exercised. The agreement -was that the repurchase might be made “at any future time,” ■ and “the hire of the negro, and interest on the purchase money, were to be set off against each other.” The latter stipulation was unnecessary, as the title by the contract vested in the vendee, subject to the defeasance, and the purchase money became the absolute property of the vendor; consequently, the one would not have been liable for hire, nor the other for interest.

The property thus vesting in the vendee, his title was adverse to that of the vendor; and the latter, within a reasonable time, should have performed, or offered to perform, on his part, the contract of repurchase. If the vendor failed to do this, then, as we have seen, under the stringent rule applicable to such sales, he forfeited his right to reclaim his property ; for when a contract is silent as to the period of performance, the law requires that it shall be executed within a reasonable time. — Shep. Dig. 502, § 184.

It is contended, in effect, on the part of the vendor, that the vendee, as shown by the evidence, frequently recognized, “up to a short period before his death,” the right of the vendor to repurchase ; and that this showed that the long delay of the vendor in offering to repurchase, was with the consent and approbation of the vendee, and should not operate to the vendor’s prejudice.

Conceding that by the consent of the vendee, the right to repurchase continuously existed to the time of his death, (a period of ten years,) still this continuing assent to the-right necessarily terminated at his death. The will of the vendee was admitted to probate, in the latter part of September, 1858, from which time the possession of his executor commenced. The executor retained the possession ifntil about the 1st of January, 1859, (a period of three months,) when under a power conferred upon him by the will, he sold and delivered the property to one Langham. During, the three months of the executor’s possession, the vendor made no offer to repurchase, though he had notice before the sale of the property, that a sale was intended. About eleven months after the commencement of the executor’s possession, and about eight months after the sale by the executor — nearly eleven years having elapsed since the date of the sale to the vendee — the vendor, for the first time, offered to repurchase the property. Under these circumstances, we are constrained to hold that the offer was not made within a reasonable time. — See Baldwin, Adm’r, v. Freeman, 13 Ala. 246. The long indulgence which had been extended to the vendor by the vendee, should have quickened his diligence in reclaiming from the executor.

The second affirmative charge to the jury, when construed in connection with the evidence, is in conflict with the view above expressed, and therefore erroneous.

As what we have said will probably be decisive of the case on another trial, we deem it unnecessary to consider any of the other rulings of the court as presented by the ¡record.

Judgment reversed, and cause remanded.