Cox v. Boyd, 38 Ala. 42

Cox v. Boyd

38 Ala. 42 | Ala. | 1861

R. W. WALKER, J.

The case made by the bill-is t-as follows : In December, 1853, T. W.- Smith & Co. sold - certain lands, on credit, to John R. Richardson, who gave - his two-notes for the purchase-money, and received from, the vendors a bond to/make titles upon'the payment of the .-purchase-money. Richardson went into possession under this purchase, and paid one of the--'--notes at its maturity. The other note, which was for $1080,-and due December 25, 1854, remained unpaid. - After tbe maturity of this .-note, namely, on the 14th Februs&'y, 1855, the complainant purchased the lands above mentioned, together with other lands, from Richardson, for $4,800. A portion of the pu-r- <. ehase-anouey was paid in cash, and the-balance was arranged *43"■by an obligation executed by the complainant, by which ■he bound himself to pay certain specified notes, one of -them being the above-mentioned note for $1080. Richardson gave the complainant a bond, conditioned to make title to all the lands included in the purchase when the several notes reieired to were paid ; and under this purchase complainant went into possession. Subsequently, and while the complainant was in possession of the land • under his purchase from Richardson,- T. W. Smith & Co. filed a bill against Richardson, to enforce their lien on the land for tbo payment of the note for $1080, and obtained a decree, in. pursuance of which the land was sold on the 30th March, 1857, to the defendant Boyd, for $1370. On the same day, ' the complainant abandoned the possession. On the 30th March, 1S59, the complainant tendered to both- Boyd and. Richardson $1670, which, it is alleged, is more than the purchase-money paid by Boyd at the register’s sale, with 10 per cent, jper annum interest thereon, and all lawful charges and expenses, and demanded a conveyance of the -. title to said land, which each of them refused to make. Thereupon, the complainant filed-this bill,- the object of ' which is to have the--:iitle to the land purchased by Boyd - decreed to be couveyed to-complainant.

-.The undertaking of .Richardson was to convey to complainant upon the performance by the latter of the-obligation executed by him. ..To decree the conveyance to com->i)lainant-of the legal title to this land, before he has performed, or offered to perform, his obligation to Richardson, •would be a violation of the maxim, that “ he who seeks equity-must do equity,” •'■which lies at the foundation of equity jurisprudence. This-bill cannot he treated,-therefore, otherwise than as a -bill for the specific performance -of Richardson’s agreement to make titles to the complainant. Consequently, it should aver that the complainant has paid,* or -offered to pay, the notes specified in bis obligation to' Richardson ; for the agreement of the latter was to make titles upon the payment of these notes. There -is .no. averment that the complainant has paid, or offered-to *44pay, the notes to Wesley C. Tarver >and Robert Robinsony* mentioned in the obligation and bond’for titles; nor does-complainant, by his bill, offer to qjay these notes, More-, over, if tire complainant bad complied with his agreement with Richardson, made move tiran two years before the register’s sale,-to pay off the vote for $1080, that sale would' not have taken place. As the complainant’s bill shows that his own laches led to the sale of which he complains, and fails to show either a compliance with his agreement to, pay the notes to Tarver and-' Robinson, or any excuse for ■ his failure to pay them, it was - without equity. — Billingsley v. Billingsley, 37 Ala. 425 ; Bell v. Thompson, 34 Ala., 636.

Decree-, affirmed.,