Carter v. Beck

40 Ala. 599 | Ala. | 1867

A. J. WALKER, C. J.

The acceptance of the defendant’s deed by the plaintiff, was a complete execution of the antecedent agreement to convey, and annulled it; and no action at law can be sustained upon it. — Howes v. Barker, 3 Johns. 506; Houghtaling v. Lewis, 10 Johns. 297; Cronister v. Cronister, 1 Watts & Ser. 442; Falconer v. Garrison, 1 McCord, 209; Frederick v. Youngblood, 19 Ala. 680.

The decision in Johnson v. Collins, (20 Ala. 435,) is not opposed to this doctrine. There the obligation was that two persons should convey; one of them only conveyed, and it was held, that a conveyance by one was not, prima facie, a discharge of the obligation, but that whether it was such a discharge depended upon the question of its acceptance in satisfaction of the obligation to convey, which was determinable by the evidence. This decision obviously has no application to a case like this, where the deed is made by the sole party who stipulated to make it. Besides, in this case, it is apparent from the face of the deed, that it was made in fulfillment and performance of the defendant’s obligation to convey, resulting from the plaintiff’s purchase.

[2-3.] From what we have said, it results, that no action could be maintained upon the antecedent agreement. Nor could the action of assumpsit, in a common money count, lie to recover back the excess of money paid, for parol evidence is not admissible to contradict the deed. — See the authorities supra. The quantity of land is stated in the deed by way of description, and is not a matter of covenant, and the deed shows a sale in gross for a plantation of the specified description.— Wright v. Wright, 34 Ala. 194; Frederick v. Youngblood, 19 Ala. 680; Dozier v. Duffie, 1 Ala. 320; Minge v. Smith, 1 Ala. 415; Jackson v. McConnell, 19 Wend, 175; Root v. Puff, 3 Barb. 353.

The court erred in refusing to charge the jury, that if they believed the evidence, they must find for the defendant. If there is a mistake in the deed, the remedy is in chancery, and not at law.

[4.] The counts of the complaint, as we understand them, are all in assumpsit, and there is no misjoinder of counts.

Reversed and remanded.