17 Ala. 318 | Ala. | 1850
The plaintiffs in error, who were the defendants below, were sued- in an action of debt upon a title bond executed by one James Martin and the defendant Sarah, then called Sarah Martin. The defendants pleaded several pleas, to one of which, the seventh, a demurrer was sustained and they
There is, however, another question which remains to be considered, and which is not wholly free from difficulty. We allude to the point raised by the defendants not oniy in the form of an objection to the count, but also in the form of instruction from the court to the jury, in respect to the tender of a deed aud demand of title on the part of the plaintiff below. The condition of the bond is that that the obligors make or cause to be made to the vendee within a reasonable time a good and lawful title free from all incumbrances. In Wade v. Killough et al. 5 Stew, & Por. 450, it was held that one who becomes the vendee of real estate and takes a bond for title is bound to prepare and tender a conveyance to the vendor; and further, that if the vendee desires an abstract of title to enable him to prepare the conveyance, it is his duty to demand it of the vendor. We are not aware that this decision has ever been departed from in this court, and we think it conforms to the set-
As to the seventh plea, it is perhaps unnecessary that we should say more than that in our judgment it is legally sufficient to bar the action. The plea asserts that after the making of the bond declared on, “James Martin by deed conveyed the fee simple title to said land free from all incumbrances to the plaintiff,
Judgment accordingly.