Jackson v. Badham

50 So. 131 | Ala. | 1909

SIMPSON, J.

The bill in this case was filed by the appellant under the statute to quiet title, and also prays that, if it shall be found that the defendant, asserts title through any invalid or illegal title, the same shall be canceled and set aside as null and void. It appears, from the pleading and proof, that on October 24, 1887, John Jackson, who was the owner of the land in question, executed a deed (which was joined in by his wife, the complainant) conveying the land to M. T. Slimmer, as trustee, to be held by him until “the construction company * * * complies with its contract of December 13, 1886, which said contract is made a part of this deed,” and provides that if the construction company fails to comply with its contract the deed is to be void. The consideration named in the deed is $80 n hand paid and 5.20 shares in the Clifton Land Company. Said contract is between said Summer and various landholders, including said Jackson, who agree to deliver deeds to the land company to be formed, at the price of $75 per acre, $10 in cash, and $65 in full-paid, nonassessable stock, and said Summer is to convey the said property to said land company when formed, “and provided, also, that the construction company 7 * * agree and bind themselves to fulfill the following terms and conditions of this contract” — and goes on to provide for the purchase of 1,000 acres of land, also the right of way for a railroad, which is to be built and equipped, “work on said railroad to be begun as soon as rights of way are secured, and in no event longer than 60 days from the organization of the land company.” A subsequent agreement was made, dispersing with the absolute requirement of securing 1,000 acres of land, and while the name of said Jackson seems to be signed by O. McAdory, to said agreement (which is Exhibit X), yet the agreement of counsel in this case states: “It is agreed that Exhibit X, attached hereto, is a true and correct copy of agreement entered into between John Jackson and others and Summer, trustee, together with the modification thereof.” John Jackson is now dead, and the complainant claims as Avidow under the homestead exemption statute.

The claim of the complainant is that, according to said agreement, the deed was not to be made by the trustee to the land company until all the provisions of the contract Avere complied with, and that therefore his act in conveying the property, before such compliance, was beyond his authority as trustee, and the deed void. We understand the agreement to be that the property Avas to be conveyed to the land company “ivhen it was formed,” provided the construction company agree and bind themselves, etc. But, in passing over this question as to whether time was made of the essence of the agreement, we think the evidence is not cleaT and satisfactory as to what part of the land, beyond the 1:avo acres reserved, on which was the dwelling house, Avas in possession of Mrs. Jackson, either before or at the time-of the filing of the bill. The evidence also sIioavs that the agreement Avas substantially performed, and, if there was any failure, the testimony is not controverted that Mr. Jackson, in his lifetime, received the stock which' Avas to be issued to him on the final delivery of the deed to the land company; that he attended the meetings of the stockholders, Avhile the land was being platted, etc., thus showing a waiver of any conditions which might have been insisted on; and no offer is made to return the stock.

On the whole evidence, we think the chancellor decided correctly, and the decree of the court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur.