28 Ala. 399 | Ala. | 1856
In Cullum v. The Branch of the Bank of the State of Alabama at Mobile, 4 Ala. 21, it was decided, that the law confers upon the purchaser of land the right to demand a good title, so long as the contract remains execu-tory; but, when fully consummated by the execution of a conveyance by all the necessary parties, then the rule of caveat emptor applies with its utmost rigor. So' that, in such case, if the purchaser is afterwards evicted by a title to which the covenants in his deed do not extend, he is without relief either at law or in equity. In the absence of fraud or mistake, this rule is a good one, as it requires nothing more than every sane man should observe, and is culpably negligent if he does not, in obtaining title to his land.
In the case before us, we think it sufficiently appears by the record that a deed was executed by the trustees to the intestate of the appellant in his lifetime. We arrive at this conclusion from the following considerations :
1. It is alleged by the bill that Thompson, after he made the purchase, was unwilling to complete it, because he was not, upon inquiry, satisfied with the title he would get; that thereupon John H. Carr informed him, that a good title had been sold him, and promised and assured him that, if he would execute the notes for the purchase money, good titles should be conveyed to .him, — that the trustees in said deed would fully warrant the title to him, and that the wife of said Pollard should execute a release of her dower, — which conveyance, it is averred, “ was to be executed in a very short time”; and thereupon the notes, with security, dated the 29th February, 1840, were executed by Thompson. Having exhibited this much caution and solicitude with regard to the title, and having executed his notes upon the assurance that a deed with warranty, and a relinquishment of dower on the part of Pollard’s wife, should be executed in a very short time thereafter by the trustees, Christian & Carr, it is quit'e unreasonable to suppose the vendee would have contented him
2. In the nest place, the bill avoids any direct allegation, as to whether the promised conveyance was executed. At least, its allegations may be literally true, and yet a deed may have been executed as agreed upon, and afterwards lost or destroyed, or put out of the complainant’s possession. It is averred that mo such titles as were promised by the trustees can be had by them, — that their warranty would be utterly valueless by reason of their' insolvency; that complainant never had the actual possession of said lot, “ nor has he had the constructive possession thereof at any time since he learned the state and difficulty of the title, but has abandoned all right to the same”; that “ neither said Christian nor Carr ever complied with the promise made by said Carr, in relation to the title to said land, when said notes were executed as aforesaid; and that he has no deed for said land, nor any instrument in writing whatever for the same.” It is not averred that the trustees failed to execute a deed with warranty of title, but that they failed to comply with their promise, — it may be in failing, in the opinion of complainant, to convey a good title as promised, or in procuring a relinquishment of dower on the part of’Mrs. Pollard, or in failing to do this in a “ very short time.” In either event, the bill might be literally true, and yet a deed have been executed; and, although the complainant may not have had such deed in his possession when he filed his bill, and was enabled to say, in the present tense, “ he has no deed for said land,” &c., it does not»follow that he did not, at some previous time, have a deed for the same. This criticism might appear too rigid, but for the fact that it is strongly fortified by other facts developed by the record; as,—
3. It appears that Thompson executed a mortgage, with power of sale, of even date with the notes, to one D. M. Russell, on the same lot, to secure the payment of the notes given for the purchase-money, in which mortgage he recited that a deed was executed to him for the lot thus purchased; and,—
4. Christian, one of the trustees, is examined as a witness
5. In the last place, the register reports that Thompson was in the constructive possession, by reason of the conveyance of the title to him; and to this report no exception was taken.
In view of all these considerations, we do not think the facts relied upon by the appellant sufficient to repel the conclusion that a deed was executed by the trustees to Thompson.
An effort was made to exclude Christian’s deposition, on the ground that he was interested. The objection may be conceded to be valid, yet it does not affect the result, as the record amply sustains the conclusion at which we have arrived without this proof.
Having arrived at the conclusion that a deed was executed by the trustees to the complainant, Thompson, he could not file his bill as upon an executory contract', wholly disregarding the deed. Whether he has any remedy, except upon the covenants contained in his deed, is not a question which we need now decide.
Let the decree of the chancellor, dismissing the bill, be affirmed.
