Gibbs v. Jemison, 12 Ala. 820

12 Ala. 820 | Ala. | 1848

ORMOND, J.

This is not a covenant between vendor and vendee, but is a covenant by a stranger, that in consideration of the payment, by the vendee to him, of a sum of money by a stipulated period, he will at that time procure to be made to him a title in fee simple to a tract of land. It is quite clear that these are dependent covenants, and that neither call maintain an action against the other, without averring a performance on his part. The declaration avers that the plaintiff did pay the money at the time stipulated, but that the defendant did not cause the title to be made.

In Pinkston v. Huie, 9 Ala. 252, we held, that the measure of damages, upon a breach of covenant, that a third person would make a title, was not the price, or value of the land, but the value of the title at the time it was to have been made. To the same effect is Dyer v. Dorsey, 1 Gill & J. 440. So in this case, if the plaintiff had proved a performance of the contract on his part, the measure of damages at law, would have been the value of the outstanding legal title in William Jemison, sen. We say at law, because in equity, it would have been held, that time was not of the essence of this contract. This was held in Beck v. Simmons & Kornegay, 7 Ala. R. 71, which cannot be distinguished from this. There, as here, it was known at the time the contract was made, that a suit was necessary to get in the outstanding title, and if the covenantor proceeds with diligence to obtain it, and is prevented by the necessary delays of the law from obtaining it, by the time stipulated, he will not in a court of chancery, be held to a literal compliance with it.

Here the plaintiff did not comply with the contract on his part, so as to entitle him to demand a strict performance from the defendant, and the charge of the court, that he could recover for any injury caused by the delay, was as favorable as he could have asked.

It appears, that by the purchase and deed from Arrington, he obtained a perfect equitable title to the land, the naked legal title being outstanding in another. In such a case it would seem, the measure of damages could not exceed the expense and trouble of obtaining the legal title, and when, as in this case, the legal title had been obtained, and vested in the plaintiff before the trial of the cause, the damages should have been merely nominal.

Judgment affirmed.