55 So. 2d 833 | Ala. | 1951
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *542
This is the second appeal in this case. Sims v. City of Birmingham,
The only question on this appeal is whether the property, for which the City of Birmingham must pay appellant as a condition to opening a street dedicated by the predecessors of appellant on condition that such payment be made, should be valued as of the present when the condition is met or as of the date of such dedication, 1872, or, we might add, a reasonable time thereafter.
The trial court fixed the present value as controlling. The controversy is determined by an application of legal principles to the instrument of dedication and the circumstances of the transaction. By it the grantor, under whom appellant claims, made a conveyance for public use but reserved the right to retain the use and occupancy of the dwelling and outhouses then occupied by him on said strip of land until such time as the grantee, predecessor of appellee, should desire to open 31st Street. At that time the grantee must pay to the *543 grantor in cash the value of said dwelling and outhouses which may be situated in said street so dedicated at the time of the valuation.
In 1916 the City of Birmingham filed a suit in equity, which reached this Court and is reported, City of Birmingham v. Graham,
There was no question presented by the pleadings as to whether Mrs. Graham had a vendor's lien. She made no such claim, so far as the record of the case shows. The issue made was by the city, and that was whether the buildings should be removed without a compliance with the terms and conditions of the dedication. The Court made no firm declaration that a vendor's lien enforceable as such was created. A vendor's lien, properly speaking, is a creature of law, not of express contract. If a lien is created by contract, that contract controls and not the principles of a vendor's lien raised by equitable interpretation. Spangler v. Barber,
The instant suit was filed August 2, 1947 by appellant, who succeeded to the rights of Mrs. Graham, and sought to quiet the title to the strip of land or, in the alternative, a strict foreclosure of an alleged vendor's lien. The case came to this Court for review of a decree denying relief to complainant. Sims v. City of Birmingham,
"This cause is submitted upon pleadings and proof and objections as noted by the register, and the same having been considered and understood, the court is of the opinion that each and every objection of the respondent is not well taken, and further that the complainant is not entitled to the relief prayed.
"It is therefore ordered, adjudged and decreed that the objections of respondent (to parts of the testimony) be and the same are hereby separately and severally overruled.
"It is further ordered, adjudged and decreed that the bill of complaint be, and hereby is dismissed.
"It is further ordered, adjudged and decreed that the complainant be taxed with and pay the cost herein accrued, for which execution may issue."
That decree was affirmed by this Court, and that was all that was decreed in that suit by either court. The opinion refers, as we have shown, to the payment for the buildings in two aspects. One, that it is a condition to the dedication, and the other that it is a part of the purchase price. It is possible to be both. But the right was reserved by express terms, and that is generally regarded as conflicting with the implied lien, as we have shown, though it is sometimes called a vendor's lien in loose terms. The lien does not always arise because of non-payment of the purchase price. Other elements must concur. So that reference in the opinion to the purchase price is not a holding that a lien arose by implication of law at the time. The reference to a vendor's lien is that it "was duly reserved against his grantee and its assigns," and "against an unconditional acceptance of the lands by the public until the purchase price was fully discharged." All show that in the use of the term "vendor's lien" the writer is merely stating in general terms the reservations in the deed, by way of argument to support a holding that by reason of those express terms the city cannot open the street without paying as a condition to do so the value of the buildings, which was a part of the consideration for the purchase. But whether a vendor's lien in its true sense was subject to be declared or enforced, contrary to a right to do so on the facts as they were shown, was not involved in the right claimed in the original bill, and was not sought to be declared and enforced by a cross-bill, and was not decreed in that case. City of Birmingham v. Graham,
Appellant contends that his rights are controlled by the principles which apply to a vendor's lien, and that in the former suit it was adjudged there existed such a right, and that the amount to be paid in settlement of a vendor's lien is the purchase price fixed as of the date of the conveyance. *545
Appellant's contention is based upon the correct theory that a vendor's lien must exist as of the date of the conveyance. Counsel also point to the principle that to enforce a vendor's lien there must be at that time "a definite, ascertained, absolute debt, owing alone for the purchase price of the land conveyed." On the contrary, "no such lien arises where the consideration for the conveyance is an uncertain, indefinite, contingent demand." Burroughs v. Burroughs,
We agree of course that a vendor's lien does not exist unless there is "a debt due to the complainant, contracted in the purchase of the land, still unpaid, and which the purchaser, either at the time, or at some prior date, was liable to pay as a primary debtor, without condition." Thomason v. Cooper,
There can be no doubt as an independent proposition that no technical vendor's lien by operation of law arose in respect to the instant transaction. There was an implied promise to pay for the value of the buildings at such time as the grantee may desire to open the street. 26 C.J.S., Deeds, § 89, note 60, p. 336. The power of the grantor to enforce a claim for the value of the buildings was by an express reservation of possession in the deed for that purpose. That is not a vendor's lien, properly termed. The rights of the parties are determined by the terms of the deed, not the principles of an implied vendor's lien.
The principle on which complainant's right depends is properly based upon the effect of a failure to give expression to his will by the grantee in a reasonable time since no time is specified, other than his will. When no time is specified in which an act may be done, the law requires that it be done in a reasonable time, if at all, even though the time of its performance is dependent upon the will of the party involved. 17 C.J.S., Contracts, § 503, page 1063. "The promisor cannot postpone the time for performance of his obligation by preventing the event from occurring." 17 C.J.S., Contracts, § 503, note 93, p. 1065: Baker v. Gaskins,
In the former litigation it was not sought to cut off the right by a failure to exercise it in a reasonable time. It was not cut off by that litigation. As we have said, the duty to pay for the buildings was implied by the contract, by which the two acres were deeded. That deed did not grant an option to open a street, but it operated as a present grant of the property. The time of payment was dependent upon the will of the grantee. There was a duty to give expression to that will within a reasonable time, and then to perform the duty to pay an amount equal to the value of the buildings. Daily v. Quinn, supra.
The right of the city at the present time is to have a specified time in which to remove the condition attached to the dedication by payment of the value of the buildings as of the date of the filing of the instant bill, and in default thereof to declare a foreclosure of the right to open the street dedicated on that condition. The city must now be given a reasonable time in which to pay an amount fixed as of the time of the filing of the bill in this case. The final decree allowed the city sixty-five days from that date to make the election and pay the present value of $150, if it elects to exercise its rights, and if it elects not to pay $150 within that time, all its rights and claim to the property are divested out of the city and invested in complainant.
The decree of the trial court conforms to this opinion, and is affirmed with the provision that the sixty-five days there provided *546 shall extend from the date of this judgment.
Affirmed.
BROWN, SIMPSON, STAKELY and GOODWYN, JJ., concur.
LIVINGSTON, C. J., and LAWSON, J., concur in the result.