37 Ala. 619 | Ala. | 1861
The declaration-was not objectionable, for the want of an averment of the tender of -a-deed to be executed by the defendant’s intestate ; because it shows that the vendor had no title, and also that he refused to make a title, when requested, for the reason that he had none. The law does not require-the useless ceremony of the preparation and tender of a deed under such circumstances. — Johnson v. Collins, 17 Ala. 318 ; Garnett v. Yoe, ib. 74. The plaintiff had a right of action as soon-as the condition of the bond was broken by a failure to convey ; it was not necessary that there should have been .an eviction of the plaintiff before the action was brought; and, of course, an averment of such eviction in the declaration was not indispensable. Having thus found the only two objections to the declaration urged in this court to be untenable, we decide that there wás no error in overruling the demurrer to the declaration.
Reversed and remanded.