| Ala. | Nov 15, 1895
This suit was commenced by appellants against appellee, on a count for money had and received, on which issue was joined. The plaintiffs claimed that defendant sold them a lot of land on a credit for $500, and two dollars rent per month, until the whole purchase price was paid, at which time a deed of conveyance was to be executed to them; that they paid $385 of the purchase money, and ascertaining that the defendant could not make or cause his vendor to make title to the land, they abandoned possession, and making demand of defendant for said sum so paid by them, which he refused to. pay, instituted this suit.
. But the plaintiffs under the facts of the case have misapprehended their remedy, if they have any. The contract between plaintiffs and defendant was in writing and read in evidence against objections of the plaintiffs, which were groundless. The writing was the proper expression of the contract between them, on which the plaintiffs should have been willing to. stand. Although clumsily drawn, its meaning is unmistakable, especially when taken in connection with the other evidence.
It appears that one Daniel Coleman, owning the land in question and being in possession thereof, sold the same to the defendant, through R. J. Terry, his agent, and gave to the defendant a covenant to convey to him on payment of the purchase money. Until full payment had been made for the lot, it is fairly inferable, that defendant was also to pay said Coleman two dollars per month rent for the same. The contract bound the plaintiffs to pay the defendant the sum of $300, which it is admitted was fully paid by them, and it was also admitted that they had. paid to Coleman, or his agent
The plaintiffs testified that they discovered in 1894, that the Tennessee Coal Iron & Railroad Company owned, and held the title to said lot superior to Coleman’s title, — and that fact was not denied; that they and Daniel Coleman thereupon surrendered possession of the lot to said company, and that they demanded from defendant all the money they had paid on their contract, and he refused to pay.
On this state of proof, which was without conflict, the court, at his request, gave the general charge for defendant. In this there was no error. It is not pretended that the defendant made any false representation as to the state of the title ; he made ■ no guarantee or warranty in reference thereto, nor did he agree, on the payment by plaintiffs of the consideration of the contract, to execute to them a conveyance of any particular kind. On the other hand, he informed them in the contract itself, that his was a mere executory contract of purchase of the land from Coleman, and he held merely his agreement to convey, which agreement he sold and transferred to plaintiffs, thereby assigning to them what right and title he had under his agreement with Coleman, and no more.
In Tobin v. Bell, 61 Ala. 128, it was said by this court: “A vendor in possession, however defective may be his title, may sell, and may, by the contract of sale, fix the measure of his rights and responsibilities. Fraud, or mistake, not occurring, the contract is the law controlling
And in Griel v. Lomax, 86 Ala. 132" court="Ala." date_filed="1888-12-15" href="https://app.midpage.ai/document/griel-v-lomax-6513344?utm_source=webapp" opinion_id="6513344">86 Ala. 132, a case similar to the one before us, the court holding that it was nothing more than the familiar case of an assignment of a contract to purchase land, said : ‘ ‘The contract purports on its face to be nothing more than the transfer or assignment by Griel to Lomax and his associates of all the • assignor’s right, title and interest in a certain piece of real property, which one Moses had contracted to sell to said Griel, and two other named persons as his covendees. There are no words of warranty used, and no covenants of seizin or of future enjoyment is stipulated for in the contract of assignment. When this is the case, the rule is the same in the sale of an interest in land, as of goods where the vendor is out of possession. The doctrine of caveat emptor applies, and the buyer having neglected to protect himself by a warranty, in the absence of fraud, will be held by the court to have purchased at his peril.” In such case the purchaser, or assignee, cannot defend an action for the purchase money, nor recover it back if paid, on account of a defect of title or failure of consideration. What rights the plaintiff may have, under their contract with defendant, as-against Coleman, if any, we do not consider. — Griel
Affirmed.