3 Stew. 361 | Ala. | 1831
This contest resolves itself entirely into the question, whether the covenants' of the parties respectively were dependent, or mutual and independent. For the plaintiff in error, it is argued that Chil-dress, the plaintiff below, was not entitled to recover, without proving that he was ready and able to convey a good title, as averred in his declaration, on the day appointed by the covenant, which facts were denied by the pleas; also, that the declaration is defective, because it contains no averment that Childress offered on the 1st of January, 1521, to convey a good title.
In support of these positions, reference is made to the
To these , rinciples, when applied to truly dependent covenants, I am prepared to yield my ready assent. The modern rules of decision, appear to have carried the idea of dependent stipulations, as far as established precedent will permit, on the ground that they have been foundunost safe and just. Nor would I contest the authority of the further remark contained in the same opinion, that “the time fixed for performance, is at law, deemed of the essence of the contract; and if the seller is not ready and able to perform his part of the agreement on that day, the purchaser may elect to consider the contract at an end.” But it is equally true, and so admitted in the same case, that “equity, which from its peculiar jurisdiction, is enabled to examine into the cause of delay in completing a purchase, and to ascertain how far the day named was deemed material by the parties, will in certain cases cany the agreement into execution, although the time appointed was elapsed.” The difference however between the case referred to, and the one under consideration, is so obvious, that the decision in the one, cannot be viewed as an authority for the other. And most of the remarks quoted, are to be considered as having been made with direct reference to the particular features of that case. There, the suit was founded on what is called a special agreement.
The Court said, “it was doubtful if any contract had ever been concluded between the parlies, previous to the date of the defendant’s letter of the 27th April, 1818, to the president of the hank; for whatever might have been the right of the bank to have closed the contract, in the terms of the letter of the 25th April, it was certainly waived by an acceptance of the modification, contained in the letter of the 27th April. Nor would any contract seem to be closed by this letter. It contained two distinct propositions by the defendant: the one to give his notes for the purchase money, payable in six quarterly payments, the first to be made on the 1st of October, then next, and to take a deed from the bank; the other to bind himself to pay the money at the times stated, and to take a bond for a deed, to be given when the whole purchase money was paid. This necessarily required some further answer from the plaintiffs, not only to signify their election between the propositions, but to do some further act in confirmation of such election, either to give the deed, or a bond for the deed.” Neither appears ever to have been done; but in that situation the matter rested for nearly three years, without any thing being done on the part of the bank to close the contract, or to intimate that they considered any contract in force, in relation to the purchase; and that not until the defendant had given them formal notice, that he considered the agreement at an end. It is true the defendant had previously accepted possession of the lots, and occupied them for a time, but relinquished the possession at or before the time he gave notice of his abandonment of the contract. This was a considerable time before.the institution of the suit, which was nearly two years after the lime fixed for performance. Nor was any offer made on the part of the bank to convey, until the day before the suit was commenced. Even then, the title offered, was shewn to be defective. Under these circumstances, the Court observed, that “the possession taken of the lots by the defendant, could at most, only be considered as a circumstance from which to infer, that he
The rules which have been adopted in various decisions, ancient and modern, for distinguishing dependent from, independent covenants, are often so nice and technical, that it is difficult to extract from them the true principle of distinction, and ascertain when it is necessary to aver performance in the declaration, and when not. In 1st Saunders,
The terms of the covenant, that the intestate should pay to Childress, one half of the purchase money, twelve months before the title of the land was to have been conveyed; and, at the same time, the former should receive possession of the land, is considered as full indication of the intention of the parties, that their respective covenants should be mutual and independent, and that each relied on his legal remedy, in case of a failure by the other. If they did not, why was the vendor to receive half the consideration long before the title was due? Why was it agreed that the vendee should have the possession before the title, and why did he accept it, and continue to retain it? The presumption is, that the possession, for several years, was of considerable value, and that the vendee has had the benefit thereof. But if the vendor was entitled at any time to his action for part of the purchase money, that
In the ease of Lee v. Fowler,
The consequence of deciding the covenants under consideration, to have been dependent, would he to declare a recision of the contract. By which means the vendee's represefatives would be left in possession of the land, with the profits arising therefrom for the term of eleven years, which would probably be equal in value, to the larger portion of the purchase money, and this without price paid or payable; at least those are the inferences arising on the record. Hence, a majority of the Court are of opinion, that the judgment below must be affirmed.
Judgment affirmed~
1 Peters’ R. 465.
Page 320, note i.
1 H. Black, 273, note a.
1 Bibb 149.
Minor’s Ala Rep. 354.
Mullins v. Cabiness, Minor's Ala. R. 21.
2 John. R. 272.
Thorpe v. Thorpe. 12 Mod. 461. Terry and v. Dantze, 2 H. Black. 389.