Day v. Galloway

MERRITT, J. Undqr the terms of the contract Vogel, exercising his option, agreed to the abandonment of the contract by Day, who according to the evidence told him (Vo-gel) between the 1st and 15th day of January that he (Day) was unable to meet the purchase money note duo January 1st. That the actual possession was not delivered until about the 1st of February is of no consequence, as to all intents and purposes the facts show that the contract, as one of purchase and sale, was abrogated between the 1st and 15th of January,’ when Day told Vogel he could not pay for the property, and Vogel assented to a return of the possession, which was afterwards delivered to Vogel. Galloway does not, and in fact cannot, claim as an innocent purchaser of the note sued on. In the first place, only the purchaser of the property could claim such (39 Cyc. 1667), and he does not claim as the holder of the legal title, but merely as the holder of an equitable title, pro tanto. But, aside from this barrier, he drew the bond for title, knew of all of its conditions, and kn'ew, or should have known, that Vogel had a right to do what he did— a^ree to an abandonment of the contract and accept a return of the property in case default was made in the payment of any one of said notes. [1] It is laid down very generally in the books that whatever is sufficient to put the purchaser upon inquiry is good constructive notice. Scroggins v. McDougald, 8 Ala. 382. Galloway does not claim that he did not know that Day had made default in the payment of the January note, nor that Vogel had under the terms of the contract agreed to an abandonment of the contract, or had accepted a return of the property. It is rather uncertain on what grounds Galloway claims the proceeds of the February note, for surely under the facts in the case, he having accepted a transfer of this note at the time of the closing of the contract of sale and the execution of the bond and the notes, knew full well that in the very face of this note, and all others, was the condition that it was payable only in case he (Day) met all the terms of the contract, and the seller Vogel had not exercised his option to declare a forfeiture of -the contract. These purchase money notes covered a period of about four years, one maturing each month. Suppose that Galloway had held the last note, and default had been made and all the facts existed just as the facts before,us, would it be contended that at the maturity of the note held by Galloway he could have enforced the collection of the same? But to make 'the illustration more complete, suppose Galloway *132 had purchased from Vogel this property, and had taken a deed,to the same, instead of a transfer of on<? of the lien notes, would it be contended that he could defeat the claim of Day? [2] The doctrine is well settled that when the vendor, after entering into a contract of sale, conveys the land to a third person, who has knowledge or notice of the prior agreement, such grantee takes the land impressed with the trust in favor of the original vendee and holds it as a trustee for such vendee, and can be compelled at the suit of the vendee to specifically perform tjie agreement by conveying the land, in the same manner and to the same extent as the vendor would have been liable to do had he not transferred the legal title. Dickinson v. Any, 25 Ala. 424; Meyer v. Mitchell, 7h Ala. 475; Ross v. Parks, 93 Ala. 156, 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Forney v. City of Birmingham, 173 Ala. 3, 55 South. 618; 39 Cyc. 1650. [3] It may safely be assumed, as a principle, that the assignee, or indorsee, of a note given for the purchase mofiey of real estate cannot stand in a better or higher position than the original pai’ee or vendor of the property. Coster v. Bank of Ga., 24 Ala. 37; 39 Cyc. 811; Hamaker v. Coons, 117 Ala. 603, 23 South. 655. [4] To sustain Galloway’s contention -is to disarm Vogel of all rights under the contract prior to the maturity of the note assigned to Galloway. In other words, if Day had made default in the payment of the November note, Vogel, who was the owner of the bond for title and of the note, could not have proceeded to exercise his option under the contract and repossess the property, for the reason that Galloway had one of the purchase money notes maturing February 1st. Such we do not understand the law to be. Galloway’s redress under the facts, here,, is against Vogel, not against Day. The affirmative charge should have been given for the defendant. The judgment of the circuit court will .therefore be reversed and the cause remanded. Reversed and remanded.