Turner v. Smith

112 Ala. 334 | Ala. | 1895

McCLELLAN, J.

Daniel LI. Turner sold and conveyed by warranty deed eighty acres of land to Felix M. Smith for four hundred dollars. There was breach of the covenants of title and good right to convey and for quiet possession, &c., in that a third party held a mortgage on the land at the time of this sale and subsequently foreclosed the same, and Smith was ousted. Turner thereupon became absolutely liable to Smith in some amount of damages for the breach of said covenants . These damages were liquidated by agreement of the parties and fixed at the sum of four hundred dollars. And Daniel H. Turner, with Lucy T. Turner as surety, executed the paper sued on to Smith agreeing to pay him said sum of four hundred dollars if he, Turner, should fail to secure a release of the land from the mortgage or should fail to redeem the land before the right of redemption expired.

We can make nothing out of these facts more or less than this : that Turner being liable to Smith, executed to the latter his promise to pay the agreed amount of such liability upon certain conditions, which have trans-r pired. The contract is a mere note of hand payable in a certain event, or rather, upon the failure of the maker to do certain things, and it rests upon the antecedent liability of the maker to the payee in some uncertain amount, in connection with the facts that this original liability was absolute and the promise to pay is conditional, as a consideration. No-other consideration than this moving to Daniel H. Turner was necessary to support the contract either as to him or Lucy T. Turner j his surety. — Lehman v. Levy, 69 Ala. 48.

All the rulings of the circuit court were in line with these views and the judgment must be affirmed. .

Affirmed.