Johnson v. Collins

20 Ala. 435 | Ala. | 1852

DARGAN, C. J.

The obligation on which this suit is btought is subject to the condition, that if the obligors, James and Sarah Martin, should, within a reasonable time, malee or cause to le made unto the obligee, John Collins, a good and lawful title to the lands therein described, then the bond should be void. This being the condition, it is manifest that it has not been completely performed. James Martin alone executed a deed to the obligee, and this deed conveyed to him no title, because Martin, himself, had none. The rule is, that when several are bound by an executory contract to make titles to the vendee, all must join in the conveyance in order to a complete performance of the agreement. Sugden on Vendors, 9 Ed. 628, 629; Cullum v. The Bank of Mobile, 4 Ala. 21; Lawrence v. Parker, 1 Mass. 191. It would violate the express terms of the contract to hold that a deed, executed by one of several obligors, was a complete execution of the agreement, when such deed gave to the vendee no title at all. As the obligation has not been completely performed, the next question is, has the obligee accepted any thing in lieu of a complete performance, and in satisfaction thereof? If he has, the obligation is saved, for if two or more be bound to the performance of one duty, and the obligee accepts from one of the obligors something in lieu of a strict performance, and in satisfaction of the debt or duty, this shall discharge all; for the obligation being satisfied and discharged as to one, it is necessarily satisfied and discharged as to all, for there is but one duty extending to all, and when this is satisfied the obligation is gone. Cheetham v. Ward, 1 Bos. & Pull. 630; Bacon Abr., vol. 7; 255. It may be, that when a simple contract debt is owing by several,' one may stipulate for his own discharge, reserving the liability of the others; authorities are to be found which so hold, and I do not intend to say, at this time, whether I concur with- them or not; but whenjhe debt or duty is satisfied by one, there is no longer an obligation resting upon the others. If, then, the deed of James Martin and Esther, his wife, which contained full covenants, and purported to convey the land described in tbe bond to tbe obligee, was accepted by bim in satisfaction of tbe bond, and was so intended at tbe time of its delivery, I should bold, as tbe Circuit Court did, that it was a discharge of Sarah Martin, now tbe wife of tbe defendant, Johnson. But whether this deed was so accepted or not was a question of intention, a fact, which tbe jury alone could determine, and tbe court very properly left it to them to decide, by tbe instructions which be gave.

Tbe counsel for tbe plaintiffs in error, however, contend that though it was a question of intention for tbe jury, yet tbe acceptance of tbe deed from one of tbe obligors, created tbe legal presumption that it was accepted in satisfaction of tbe bond, and that tbe court should have so charged tbe jury. But admitting that such would have been thé legal presumption, if tbe bond bad been executed by James Martin alone, this presumption could not arise in this case, tbe bond being executed by two, for tbe deed could only operate by way of satisfaction of tbe bond; it was not a complete performance of tbe contract, and when the -agreement is not completely performed, and tbe obligors insist upon satisfaction in lieu of performance, tbe burthen of proof is upon them, to show that tbe thing done, or given in tbe stead of performance, was accepted by tbe obligee, and intended as a satisfaction, Batten on Specific Performance 280 ; and certainly tbe law will not - raise a legal presumption in opposition to tbe burthen of proof.

It is again obiected, that tbe latter part of tbe 'first charge was calculated to mislead tbe jury, by impressing them with tbe idea that if no express agreement or understanding existed between tbe parties, at tbe time tbe deed was delivered, that tbe bond should be surrendered or cancelled, that it was not satisfied or discharged, although tbe deed was accepted with tbe intention, and for tbe purpose of discharging tbe bond. But talcing tbe charge altogether, we think tbe jury must have been impressed with tbe idea, that it was tbe intention alone with which the deed was received that should' govern their verdict, and that if they found this intention to exist, they should render a verdict for tbe defendant, without regard to tbe fact whether anything was said in terms about surrendering or cancelling tbe bond. Looking at tbe whole charge, we are unable to perceive that it was calculated to mislead tbe jury, or improperly influence their verdict.

In regard to tbe charge refused, that if tbe jury believed tbe whole evidence they must find for the defendants, it is enough to say, that though we have sometimes sustained such charges, it is very clear that it would have been highly im. proper in this case. It would have been a direct invasion by the court of the province of the jury, by undertaking to de/ cide the question of intention of the parties, in making anp. accepting the deed relied on as a. satisfaction of the bond.

In reference to the release given by Collins to James Martin, it only operated on the covenants contained in the deed, and had no effect at all upon the liability of the obligors on their bond.

- There is no error in the record, and the judgment must be affirmed.