55 Ala. 616 | Ala. | 1876
The conveyance stipulated for in the contract, and executed afterwards on the same day the contract was made, describes all the parcels of land which the grantor professed or intended then to convey. They were the same as those described in the contract. But neither in it, nor in the deed, was “fraction C of section 23” mentioned as a part of the property sold ; nor is any muniment of title produced to show that it belonged to Chapman. Indeed, it does not appear to be known by the parties to this suit, what person is, by conveyance, paper title, or inheritance, the true owner of-this fraction. > In the fall of 1860, when the survey was made, it was unoccupied, and seemed to have been so several years; there was no fence then upon it; and only a small portion of it, about six acres, appeared to have ever been cleared and cultivated. Lying beside the lands sold by Chapman to Mrs. Lee, a part of it seems, before that sale, to have been sometimes cultivated by him, and sometimes by others. The witness, Elliott, testifies that he lived on, and cultivated a few acres thereof, in 1858, the year of the sale; and afterwards, though not until some years afterwards, Mrs. Lee, or some of her family, occupied and used a part of the land. But it was not represented or sold as a part of her estate, when, after her death, the other contiguous lands were sold by the administrator, under the order of the Probate Court, upon his petition. Nor was she, nor any one on her behalf, present at the survey made 'by Chiles in the autumn of 1860; when he hesitatingly made a partial survey of “fraction C,” at the instance of one of the witnesses, who was present as the agent of Mr. Chapman, and represented that it was a part of the land the latter had sold to Mrs. Lee. Nor did the surveyor mark it, as he marked the other parcels surveyed, with Mr. Chapman’s name, on the map he made on that occasion.
Not being mentioned in the contract, nor conveyed by the deed, as Mr. Chapman’s, “ fraction C ” can not be made the subject of a charge against Mrs. Lee’s administrator, unless
“ Most generally,” said this court, in Cullum v. Br. Bank of Mobile, 4 Ala. p. 28, “ the inducement of a purchaser, in treating for the acquisition of land, is to become its owner. We do not mean to assert that one person may not legally contract with another, who has merely the possession of the land, although his title to it may be known to be imperfect,, or even bad; but our intention is to show what are the prima facie intendments, springing out of contracts for the purchase of land, when there are no stipulations between the parties with reference to the title. * * * A similar rule obtains in the courts of law, where all titles, as between the vendor and purchaser, are declared either good or bad, according as their merits may be; for there is no middle term to designate a defective title” (Romlly v. James, 6 Taunt. 263); “and every title, to be marketable, must be good in equity, as well as at law.” — Maberly v. Robbins, 5 Taunt. 625. “ The right to a good title,” said Sir William Grant, in Ogilvie v. Foljambe (3 Meriv. 33), “is a right, not growing out of the agreement of the parties, but which is given by law. The purchaser insists on having a good title; not because it is stipulated for, but on the general right of a purchaser to require it.” And in Addison on Contracts, it is said : “An agreement to make out a good title is implied from every contract for the sale of realty, and a purchaser is not bound to accept a doubtful title.” — Vol. 2, § 513, of Morgan’s Amer. Ed. See, also, Dearth v. Williamson, 2 Serg. & R. 498; Souter v. Drake, 5 B. & Adolph. 992; Dick v. Donald, 1 Bligh, N. S. 655.
The purchaser, then, having the right to require a good
Now, applying these principles to the case in hand, what certainty could there be, if the true owner of “ fraction 0 ” had sued for it, on the first of January, 1859, or at any time afterwards, that witnesses could have been found and produced, able and willing to prove all the conditions mentioned by Mr. Washburn, which were essential to establish title in Chapman ? The fact that he had not included it in the contract or deed, would tend to show he did not then claim it. For, if he had taken and kept possession of this land, so long
There are numerous decisions of this court, holding that a purchaser of land, who has received, and is in possession of it as such, can not, when he is sued upon his notes given for the purchase-money, effectually defend himself against them, by setting up that the vendor had not a good title. He can not avoid the obligations of his contract, and continue to enjoy its benefits. "Whether those decisions are applicable to the present cause, will depend upon the result of the inquiry, whether “fraction C” was included among the parcels of land sold by Chapman to Mrs. Lee; and whether or not he delivered possession of it to her, and she received it, as purchaser from him ? If Mr. Chapman occupied some part of it, only as the vacant land of some unknown owner, lying conveniently by his own, and merely withdrew from it, when he transferred the possession of the main tract he had sold to Mrs. Lee; and she afterwards, the land being vacant, took possession of and occupied it, she would not, when sued upon the contract set up in this action, be precluded from denying Chapman’s title. It will be for the jury, under proper charges from the court, to determine whether Chapman delivered possession of “fraction C” to Mrs. Lee, as purchaser thereof from him, and she so accepted and held it.
There was no error in the refusal of the court to grant the motion of plaintiff, to relieve him from, and charge defendant with, the costs, $58.85, which plaintiff had been required to pay in 1869, as a condition for leave to file an amended complaint. Nothing occurring after that time, entitled the mover to the order prayed for.
In some of the charges given at the request of appellant, Avhich are set out in the record, there are errors, which, of course, could not be assigned on his appeal; and cannot, therefore, now be corrected. What we have said above, will enable the' circuit judge to avoid them hereafter. It is unnecessary to notice any of the other questions, as they probably will not arise again.
Let the judgment be reversed, and the cause be remanded.