45 So. 181 | Ala. | 1907
The bill in this case was filed by Jasper T. Bates, who was appellant’s intestate, and it alleges that H. W. Johnston (who was the intestate of the appellee Margaret, and whose only heir she is) offered by letter to sell to said Bates the land described in the bill for $270; that said Bates replied, accepting the proposition, provided Johnston’s title proved to be good, and requested H. W. Johnston to prepare and sign a deed, and send it to Blocker, to be delivered to said Bates, the original complainant, on payment of the money ; that it was afterwards ascertained that said H. W. Johnston did not have the title to a certain part of the land, but that the same was in his brother, Frederick Johnston, the other defendant, and that, in order to remedy this said H. W. obtained from Frederick Johnston a power of attorney authorizing him to convey the same; that said H. W. Johnston did sign the deed, individually and as attorney in fact for his said brother, conveying the land to said original complainant, and
The acceptance by the complainant of the offer to sell, both being by letter, would complete the contract of sale, the proviso in the acceptance being merely the proviso which the law would attach to the acceptance at any rate, towit, that the seller had a good title to- the land; and the deed, afterwards signed, though improperly acknowledged, even if the previous agreement had not been in writing, would be a sufficient compliance with the statute of frauds, the office of the deed being merely to furnish the written evidence of the terms of the previous engagement. — Jenkins v. Harrison, 66 Ala. 346, 354, et seq.; Johnston v. Jones, 85 Ala. 286, 290, et seq., 4 South. 748.
The complainant asks for a decree against Frederick Johnston, requiring him to convey his title to a portion of the land to complainant. This could not be granted, for the reason that the bill does not show any contract relation between the complainant and said Frederick Johnston, but only a power of attorney from Frederick to H: W. Johnston, authorizing him to convey the land, which power he executed by making the deed referred to. The bill alleges that both said power of attorney and said deed were defective, in that the acknowledg
There is no necessity for the injunction of the suit at law, as the defense sought to be made can be made in the law court. — Glenn v. Adams, 129 Ala. 189, 29 South. 836. But, aside from that, the allegations of the bill show that the deed that was signed and delivered to Smith was sufficient to convey the legal title to the land, being attested by one witness. That being the case, the complainant had no further claim on the vendors. While it would be more convenient to have a deed properly acknowledged, yet, as he did not bargain for any particular form of conveyance, the complainant could not refuse to accept a deed which conveyed the legal title. If Smith was his agent, clothed with authority to reject the deed offered, then his rejection and return of the same put an end to the rights of the complainant. If, on the other hand, said Smith had no authority to re
Counsel contends that the deed “never was tendered, to complainant, but was, by agreement of both parties, delivered to an abstracter, to be by him delivered to the complainant if found sufficient”; but he also claims that his right to a decree against Frederick Johnston is based on the deed which was executed by him per his attorney in fact, which, though defective, amounted to an agreement to convey. If this deed was delivered, it was a valid deed, and entitled the vendors to the check for the purchase money. If it was not delivered, then it was not complete as a • Contract to convey. The decisions with regard to treating defectively executed deeds as contracts to convey refer to those which fail to be operative as conveyances because neither witnessed nor acknowledged, and cannot be held to authorize a party to whom is tendered a valid deed, witnessed, to refuse to receive it, and refuse to pay the purchase money, and then file a bill for specific performance, in order to get an acknowledged deed, which hhd not been contracted for.
The' decree of the court is affirmed.