56 So. 956 | Ala. | 1911
^-This is an action by appellant for breach of a contract to purchase land. The first count was withdrawn, demurrers Avere interposed to the second and third counts, Avhicli were sustained, and by reason of said ruling a nonsuit Asms taken, and this appeal is from said ruling of the court.
Mr. Warvelle states the rule to be that: “He who seeks to enforce a contract as against others must be himself Avitliout fault, and ready and Avilling to comply. In furtherance of this rule, it has often been held that the party avIio seeks the remedy of specific performance must first tender a performance by the offer of a properly executed deed by the vendor, or by a tender of the purchase money by the Aendee.” These principles “have
He also states that: “It is incumbent on the vendor, in an action for damages for breach of contract, to show that he has been ready and willing, or has offered, to perform on his part, or that the vendee has done some act which dispenses with a performance; and it will be a sufficient performance or offer to perform, on his part, to enable him to maintain the action, that he has tendered to the vendee a sufficient deed.” — 2 Warvelle on Vendors, p. 963, § 4.
“Although it was formerly held othenvise, there is now no proposition more firmly established in the law than that, in a contract for the sale of real estate, if the covenants are mutual and dependent, neither party can sue without a performance, or the offer to perform, on the one part, as a condition precedent to the right to insist upon a performance, on the other part. Accordingly a tender of the deed, or of the purchase money, as the case may be, is essential. * * * The general rule is to consider all covenants dependent, in the absence of a contrary intention.” — 29 Am. & Ene. Encyc. Law (2d Ed.) 686-689.
Bays the Supreme Court of the United States: “In contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. * - * The seller ought not to be compelled to part with his property, without receiving the consideration; nor the purchaser to part with his money, without an equivalent in return. Hence, in such cases, if either a vendor or a vendee wishes to compel the other to fulfill his con
In the case of Ledyard v. Manning, 1 Ala. 153, page 155, which Avas an action for the purchase money, the complaint did allege the the “defendant in error [plaintiff beloAv] did make and tender to the plaintiff in error [defendant beloAv] a general Avarranty deed to the lots, and demanded” payment. While the opinion does use the expression that “neither can maintain an action Avithout showing performance, or an offer to perform, or at least a readiness to perform ” yet the Avords AA’hich Ave have italicised have no application to the case, as a distinct offer was averred.
The case of Garnett v. Yoe, 17 Ala. 74, page 77, was for a breach of a title bond to convey, providing that the party Avas to convey “so soon as G. could obtain title to the same;” and, although the declaration did allege that the vendee had tendered to the vendor a deed to be signed by him, the court discusses the question of the obligation of the vendee to prepare a deed for the vendor to sign (a different proposition from that involved in this suit), and recognizes the fact that this court had previously decided that the vendee Avas under obligation to do so, yet states that, inasmuch as the vendor had
The case of McKleroy v. Tulane, 34 Ala. 78, pages 81, 82, was a bill filed for an account of purchase money and to subject the land to its payment. The court calls attention to the fact that the contract was not a sale, but a mere agreement on one side to sell, and on the other to purchase, and says that, “if the vendee, prior to the appointed time for the payment of the purchase money and the delivery of the deed, notifies the vendor that he will not take the property, this will dispense with the formal tender of a conveyance by the latter” (italics supplied), but goes on to hold that, as the vendor, after receiving such notice, applies to equity to treat the agreement as an executed contract, and sell the property for purchase money, it partakes of the nature of a bill for specific performance, making it essential “to show that he was able and ready at the appointed time to do that which, by the agreement, he had contracted to do,” etc.
The case of Burkett v. Munford, 70 Ala. 423, decides that when the vendor executes a bond conditioned to make title generally, and the purchaser gives his notes, payable on a day certain, the payment of the purchase money is not dependent on the making of title; and, in a bill by the vendor to enforce payment of the purchase money, it is necessary to aver an offer to convey, or readiness and willingness to make title, as the day of payment is to happen or may happen before the thing which is the consideration of the payment is to be performed. To the same effect is Broughton v. Mitchell, 64 Ala. 210.
The case of Brady v. Green, 159 Ala. 482, 48 South. 807, was an action by the vendee against the vendor for damages for breach of the contract to sell. The complaint averred that, “although he [plaintiff] ivas ready, able, and willing, and offered, to comply with his part of the contract, the defendant failed” and refused to convey. The court held this a sufficient offer of performance; and that, as the defendant had refused to convey, the vendee was not required to prepare and tender the deed to be signed by the vendor.
The case of Ashurst v. Peck et al., 101 Ala. 499, page 509, 14 South. 541, holds that, to the maintenance of a bill for specific performance, it is not essential that the vendee offer to perform or tender a deed before filing the bill.
The contract set out in count 2 is so indefinite in description, not showing as to what parts of the land described in the map the title is to be conveyed, and as to what part only the timber interest is to be conveyed, and not showing what the terms of the option are, according to Avhich the option may have expired before the commencement of this suit, that “no breach could be assigned upon it which could be compensated by any eriterior of damages to be furnished by the contract it
In addition to what has been said, ivhile the authorities cited indicate some confusion as to the point whether, in all cases, the vendor must tender a deed, in order to place the vendee in default, yet in this case, where it is shown that the lands which the vendor was to convey were held only under an option, and it is not averred that said option has been complied with so as to enable the vendor to make title to the lands and timber, and the further fact that, under the contract, there is nothing for the vendee to do by way of purchasing the land, save to accept the deed when made, the count should have alleged at least a distinct offer by the vendor, and such facts as are necessary to show that he had acquired the title, so as to convey the property to the vendee; and this offer should be accompanied by a tender of a deed. The second count is therefore subject to causes of demurrer Nos. 3, 4, and 7. •
In addition to the fact that the third count is subject to the same causes of demurrer as the second count, it is also subject to the cause setting up the statute of frauds, as the addendum to the contract shows that it rested partly in parol.
The judgment of the court is affirmed.
Affirmed.