Greene v. Allen, 32 Ala. 215

Greene v. Allen

32 Ala. 215 | Ala. | 1858

STONE, J.

It is settled in this State, that a purchaser of land has a right to demand a good title. — Cullum v. Br. Bank, 4 Ala. 21; Hunter v. O’Neal, 12 Ala. 37; Parks v. Brooks, 16 Ala. 529; Springle v. Shields, 17 Ala. 296; Thrasher v. Pinckard, 23 Ala. 616.

After breach, a purchaser may either proceed for specific performance, or sue on his bond for title. — Haines v. *221Farley, 2 Porter, 528; Clemens v. Loggins, 1 Ala. 622; Griggs v. Woodruff, 14 Ala. 9.

These citations abundantly prove, that it is the vendor’s duty to acquire a good title, and be prepared to convey to his vendee, whenever, by the terms of the contract, the latter has a right to demand it. — Clemens v. Loggins, 2 Ala.

[2.] No matter how complete an equity Chilton may ■have had in the land in controversy, that was not a compliance with his bond. He had no right to require his vendee, Bruton, to incur the labor and expense of litigation, necessary to divest the legal title out of Driver. Hence, all the proof, tending to show authority in Duren to sell, and ratification of such sale by Driver and Moore, was rightly excluded by the primary court.

[3.] Neither could Greene demand, as a right, that Bruton should withhold the payment of the purchase-money, or himself procure a surrender of the title by Moore to Chilton. The former would probably have exposed him to expensive and unsuccessful litigation; while, by the terms of the contract, the latter duty rested on Greene’s principal. Bruton’s agreement to visit Moore, and endeavor to obtain a surrender of the title, was a promise without consideration, and Greene can claim nothing for its breach.

[4.] We have some decisions which hold, that where a purchaser proceeds in equity for a rescission of a contract for a sale of land, on account of defective title, he must account for rents and profits, if any have accrued to him. See Walton v. Bonham, 24 Ala. 513; Young v. Harris, 2 Ala.; Williams v. Mitchell’s Adm’r, 30 Ala. 299. But we know of no case in which this doctrine has been applied to a suit at law on a bond for title, where the breach alleged is the failure of the vendor’s title. If a vendor in such case could recoup, his vendee might be liable to a double recovery: first to Ms vendor, and secondly to the true owner of the land. Moreover, such recoupment might operate a direct pecuniary benefit to a fraudulent vendor, who would thus speculate on his own *222tortius acts. We prefer not to enlarge a principle, which rests on a foundation so questionable.

[5.] The only remaining question is the admissibility of the proceedings in the chancery suit by Bruton v. Greene and others, relating to this transaction. We cannot perceive the necessity of this evidence — nor is its materiality apparent. We have seen that the purchaser was under no obligation to perfect his vendor’s title; and it follows that proof by him of an unsuccessful attempt to do so, was simply an act of supererogation. We are satisfied, however, that this evidence could not possibly have injured the defendant. It was, at most, error without injury.

The judgment of the circuit court is affirmed.

Rice, O. J., and Waleeb, J., not sitting.