McKleroy v. Tulane, 34 Ala. 78

34 Ala. 78 | Ala. | 1859

R. W. WALKER, J.

The agreement alleged in the bill is one founded upon mutual and concurrent conditions: the stipulated conveyance by one party, and the payment of the purchase-money by the other, were to be contemporaneous acts, and each of the contractors was bound to perform on his part at the time fixed. — Whitehurst v. Boyd, 8 Ala. 375; Smith v. Lewis, 24 Conn. 624; Ledyard v. Manning, 1 Ala. 153; Smith v. Christmas, 7 Yerger, 565; 2 Lomax’s Dig. 47 ; 4 Florida, 359.

The contract being a mere agreement on the one side to sell, and on the other to purchase, at a future day, the purchaser was not entitled to the possession of the property, until the performance of the executory contract. Sufferens v. Townsend, 9 Johns. 35; Cooper v. Stower, 9 Johns. 331. In sucha case, if the vendee, prior to the time appointed for the payment of the purchase-money and the delivery of the deed, notifies the vendor that he will not take tbe property, this will dispense with the formal tender of a conveyance by the latter. And yet, if a vendor, who has received such notice, applies to a court of equity to treat the agreement as an executed contract, and to direct the sale of the property for the payment of the purchase-money, his bill necessarily so far partakes of the character of a bill for specific performance, as to make it essential for him to show that he was able and ready, at the appointed time, to do that which by the agreement he had contracted todo; or, at least, that he was disposed, and, if the contract had not been renounced by the vendee, would have been able, on the day designated, to make full performance on his part. See Smith v. Lewis, 24 Conn. 624; Holmes v. Holmes, 12 Barb. 627; Smith v. Christmas, 7 Yerger, 565.

[2.] The undertaking of Daniels and McKleroy was, that they would make, or cause to be made, to Tulane, “ a good and sufficient deed or other conveyance or conveyances in the law for conveying and assuring” the property to Tulane; “which deed or deeds shall contain the usual full covenants and warranty of title of the premises to the party of the second part, free and clear of all liens and incumbrances whatsoever.”

"We need not discuss the correctness of the position assumed by the chancellor, that there could be no performance of the agreement on the part of Daniels and McKleroy, except by the execution of a joint conveyance by them, with full covenants from each for the whole property; or that, if separate deeds could be allowed, still the covenants of each of the vendors should extend to the whole land, and not to separate moieties. The authorities certainly seem to sustain the proposition, that when several are bound by an executory agreement to make titles to another, all must join in the conveyance, and the covenants of each must extend to the whole land. Johnson v. Collins, 20 Ala. 443; Lawrence v. Parker, 1 Mass. 191; Clark v. Redman, 1 Blackf. 379.

But, however that may be, it is at least clear, that these parties undertook for the execution of deeds to Tulane, which were not only to be sufficient for conveying to him the premises, but which were also to contain- “the usual full covenants and warranty of title.” The stipulation on their part relates, not only to the effect, but to the form of the deeds. The deeds are not only to convey a good title, but they are to contain the covenants named. The complainant must show, therefore, that he and Daniels were, or, but for the renunciation of the contract by Tulane, would have been, ready and able at the, time appointed to deliver to the latter deeds corresponding, both in substance and in form, to the terms of their agreement.

Where the contract for the sale of real estate is silent upon the subject, the question as to what covenants for title the purchaser has a right to expect, is one to which the authorities are far from furnishing an uniform answer. Rawle’s Cov. 559, et seq. But this is a matter always subject to be controlled by the express terms of the articles of sale; and, in the present ease, the language employed is such as to leave but little room for controversy. Chancellor Kent says, that the usual covenants in a deed are — 1st, that the grantor is lawfully seized; 2d, that he has good right to convey ; 3d, that the land is free from incumbrances; 4th, that the grantee shall quietly enjoy; 5th, that the grantor will warrant and defend the title against all lawful claims. — 4 Kent, 471. According to some authorities, the covenant of seizin embraces the covenant of right to convey; and according to others, the covenant of general warranty includes the covenant for quiet enjoyment, as the same is usually expressed in this country. — Rawle’s Cov. 50, 53, 127, 237-8; Caldwell v. Kirkpatrick, 6 Ala. 60.

If these propositions are correct, the covenants of seizin, freedom from incumbrances, and general warranty, would embrace all the others. But these three covenants are distinct and different: each has a field of operation unoccupied by either of the others, and they are distinguishable alike in their objects and effects. The first two are broken, if at all, as soon as the deed is made ; while the last, being equivalent to a covenant fo-r quiet enjoyment, is not broken until there is an actual eviction, or something which the law deems a disturbance of the possession. — 4 Kent, 471-2; Mott v. Palmer, 1 Comstock, 564; Anderson v. Knox, 20 Ala. 156; Caldwell v. Kirkpatrick, 6 Ala. 60; Rawle’s Cov. 80, 83, 132, 235.

If this agreement had been silent as to the form of the deed, or if it had simply stipulated for a conveyance ‘by warranty title,’ or for the execution of a deed ‘with warranty,’ it may be that a conveyance which transferred a good title, and contained the covenant of general warranty, -would have been deemed sufficient. — Rawle’s Cov. 562-3; Rucker v. Lowther, 6 Leigh, 259; Clark v. Redman, 1 Blackf. 379; Hedges v. Kerr, 4 B. Monroe, 528; Bronson v. Cahill, 4 McLean, 19. That, however, is not the question here. The language of this agreement will not allow us to hold, that the contract of McKleroy and Daniels would have been complied with by the execution of deeds containing no other covenant than that of general warranty. They stipulate to deliver deeds which shall contain “the usual full covenants and warranty of title.” Unless we repudiate all the rules which have been adopted for the construction of written instruments, we must conclude that the parties contemplated something beyond the mere warranty of title; and we hold, that by their contract Daniels and McKleroy bound themselves to deliver deeds containing covenants equivalent, in extent and operation, to the covenants of seizin, freedom from incumbrances, and general warranty.

The bill does not show that the vendors were, or but for the notice received from Tulane would have been, able and ready, on the appointed day, to deliver such deeds. The complainant avers, that he and his wife “conveyed by warranty titles,” and that “the deed executed by them was a good and sufficient deed.” The allegation in reference to the deeds executed by the devisees of Hamilton is, that Daniels “ obtained deeds to the lot from the devisees for their interest.” There is no averment that the deeds thus obtained contained the covenants stipulated for. It is true, there is an allegation that Daniels “notified Tulane that he had the necessary deeds from all of the parties, with the usual full covenants and warranty of titlebut we cannot hold that this is equivalent to an averment that the deeds did in fact contain such covenants. Nor is there any allegation that Daniels could have obtained from the devisees deeds with the required covenants. The 6th paragraph of the bill is obviously insufficient to show that the vendors had offered, and were ready and able, to perform their part of the agreement. The complainant should have alleged specifically what the parties in fact did, so that the court could determine whether the thing done was a compliance with their undertaking. — Cameron v. Abbott, 30 Ala. 416; Norris v. Norris, 27 Ala. 519; Cockerell v. Gurley, 26 Ala. 405.

It is said that Tulane expressed himself satisfied with the deeds, and that therefore he cannot now make this objection. This is a mistake. The bill contains no such averment. The allegations are, that Tulane “at first expressed himself satisfied with the deeds or the deed of your orator;” and, again, that “he expressed himself satisfied with the deed and title of your orator, and did not object in any respect to such titles.” There is no averment that he ever expressed himself satisfied with the deeds from the devisees of Hamilton, nor in fact is there any allegation that he ever saw those deeds. And even if the statement that he “did not object in any respect to said titles,” can be considered as referring to the deeds from Hamilton’s devisees.; still, his mere failure to object would not, under the circumstances disclosed by the bill, operate an estoppel.

The decree of the chancellor is affirmed.