35 Ala. 259 | Ala. | 1859
1. It does not appear that the demurrer stated any specific objections to the complaint; and for this reason, if for no other, it was properly overruled. — Code, § 2253.
2. The lands named in the instrument sued on, were unimproved lands, adjoining the improved lands sold by the plaintiff to the defendant at the same time, and by the same contract; and they were sold by the plaintiff, and purchased by the defendant, for the use of the improved lands, and as part and parcel of the same plantation. Upon the execution of the deed from the plaintiff to the defendant, which, it is shown, embraced all the lands, both improved and unimproved, the defendant went into the actual possession of the improved land, and so remained to the time of the trial; and no other person has had possession of the unimproved lands since they were purchased by the defendant. Upon these facts, we think that the defendant must be considered as having obtained and held possession under this purchase, of all the lands included in the deed executed by the plaintiff.
No principle is better settled in this court, than that a party who purchases land, gives his note for the purchase-money, and goes into possession under a deed or bond for title from the vendor, cannot, so long as his possession is undisturbed, resist a recovery upon the note for the want of title in the vendor, or on account of the failure of the latter to complete the conveyance. — George v. Stockton,
It is insisted, however, that the stipulation contained in the instrument sued on, to the effect that it was to be void, “ if the said Iliggason fail to make permanent title to the said Ilelvenstein, after the said Ilelvenstein lifts a hundred and eighty dollar deed of trust,” renders the principle just cited inapplicable to this case. To this it is a sufficient answer to say, that as the time when the deed of trust would be discharged by Ilelvenstein was left uncertain, and as his payment of the debt secured by it was a fact necessarily more within the knowledge of Ilelvenstein, than of Higgason, the former cannot avail himself of the payment and Higgason’s failure thereupon to make the stipulated permanent title, as a defense to this suit, without the further proof that Iliggason had been notified that the deed of trust had been satisfied. Williams v. Harper, 1 Ala. 502; Eitzpatrick v. Hanrick, II Ala. 783. The bill of exceptions affirmatively shows “ that there was no proof that the plaintiff’ had any notice of the payment and satisfaction of the deed of trust.”
Upon the evidence set out in the record, the plaintiff' was entitled to recover, and the court committed no error in so charging the jury.
The judgment is affirmed.
