93 Ala. 252 | Ala. | 1890
— Appellants sued defendants to recover back $912.50 purchase-money, which had been paid as part payment for the purchase of a lot. The defendants pleaded by way of set-off the balance due on the purchase, and recovered judgment on their plea of set-off against the plaintiffs for the amount claimed. Plaintiffs rested their right to recover back the purchase-money, upon two grounds: first, because the contract for the purchase of the lot was in parol; second,. because their vendors had no title to a part of the lot, and the remainder was useless for the purposes for which it was purchased.
The undisputed facts, briefly stated, are as follows : On the 30th of J uly, 1887, plaintiffs- leased from the defendants a lot 22 feet wide by 100 feet deep, for two years, paying three- ' hundred dollars in cash in advance for the first year, and executed their promissory note for the second year. At the time of the lease, the Episcopal Church had inclosed by a fence a strip of the lot — six feet in width — along its entire length. Under their lease, plaintiffs took possession of the remaining 16 feet of the lot, and while in possession, three months before the expiration of the first year of the lease, contracted to-purchase from the defendants the lot for $2,200, and paid in cash on this purchase $912.50. By the purchase it was agreed, that the lease contract be cancelled, and tbe possession taken under the lease continued under the contract of purchase. After the purchase of the lot, plaintiffs removed the fence of the Episcopal Church from off the lot, and erected a storehouse on the lot, covering the full width of 22 feet, and running back fifty feet.-( The plaintiffs occupied the store until it was burned in February,'1889. The bill of exceptions states, that before the store-house was destroyed, the Episcopal Church by proceedings (what kind is not stated) replaced their fence on so much of the lot as was not covered by the building, and. that after the fire the fence was restored to its original place. The contract for the sale and purchase of the lot between plaintiff and defendant was entirely in parol.
When plaintiffs leased the lot, and also when the lot was purchased, “the proof showed that plaintiffs had full knowledge of the claim of the church,” and were informed that defendants held the lot under a contract of purchase, and that the title was in the Decatur Mineral & Land Improvement Company. It is further proven, and not denied, that the
Tt is not pretended that the defendants were guilty of fraud, deceit or misrepresentation in the transaction; and there is no proof to show that the Decatur Mineral & Land Improvement Company were not solvent, and fully able to respond for any breach of the covenants of warranty contained in the deed of conveyance. In the case of Thompson v. Sheppard, it was said: “The law ought to be regarded as 'finally and definitely settled in this State, that a vendee who has gone into possession under a deed with covénants of warranty, can not, unless there was fraud in the sale to him, or the vendor is insolvent, and without ability to respond to his. covenants, so long as he remains in possession, either at law or in equity, defend against the payment of the purchase-money.”' — 85 Ala. 611, 619; Strong v. Waddell, 56 Ala. 471; Ib. 576; Garner v. Leverett, 32 Ala. 410, and authorities cited.
Whenever a vendor stipulates for the conveyance of land, the presumption of law is, that he stipulates to convey a good title, and the purchaser has the right to demand such a title; biit, when the vendor stipulates to make only a quit-claim deed, or agrees to make a deed of any particular description, his duty and obligation is performed by the execution of such a deed, however defective the title conveyed.— Tobin v. Bell, 61 Ala. 128. The warranty deed of the Decarur Mineral & Land Improvement Company is what the vendors agreed to give, and what the plaintiffs contracted to receive;. and this deed having been executed according to contract, no' further duty or liability rested upon the vendors.
The facts of this case take it out of the operation of the statute of frauds. — Code, 1886, § 1732, sub-div. 5; Johnston v. Jones, 85 Ala. 286; Heflin v. Milton, 69 Ala. 354; Steadman v. Parish, at this term.
Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written. It is error for the court to qualify them. — Code, 1886, § 2756. When a charge is asked in writing, and the court gives the charge, and qualifies it; although the court is without authority to qualify it, yet, if the charge is one which the court should have refused, it is error without injury. Furthermore, if, under the undisputed facts, the court might have given the general charge for the party in favor of whom the verdict was rendered, it would be error without injury. Moody v. Walker, 89 Ala. 620; Stephens v. Regenstein, Ib. 562. Although the record fails to show that the charges, or either of them, moved for by the plaintiffs, were in writing, yet, if the charges had been asked for in writing, under the law as herein declared, their refusal was error without injury.
There is no error in the record of which appellants can complain, and the judgment is affirmed.