Burt v. Henry

GOLDTHWAITE, J. 1. In the examination of this record, it is most convenient to first ascertain the rules which govern the cause, as presented in the pleadings, and then shew how far the action of the circuit court at the trial was in accordance or at variance with them. By referring to the condition of the bond, it will be seen that the defendant stipulates it shall be void if himself, his heirs or assigns, or any of them, shall make titles to certain lands, or cause such to be made to Jumper, the obligee, his heirs or assigns, whenever he should discharge a particular note. We can see no reason whatever, for the assumption thet the defendant contracts, either that he had the title at the execution of the bond, or that having it, he would continue to hold it until it should suit the convenience of the obligee, or his assigns, to pay the sum due by' the note. All that the defendant binds himself for, is, that he will cause the title to be made when the money is paid. In this view of the contract, it is evident there was no violation of it by the mere circumstance of conveying the title to Mrs. Hall. 2. Then, as to the question, whether the payment of the sum due on the note, was to be made to Mrs. Hall, or the defendant, to render the obligation absolute upon the defend [883] ant to make titles, and whether a tender to the defendant, after it was known to Jumper and his assignee, that th.e note was assigned to Mrs. Hall, would produce that effect. W^ think it cannot be intended the defendant imposed on himself any obligation to hold the note. That was a transferra-ble security, and as no stipulation was made to the contrary, the defendant was entitled to transfer the property in it to any one, if done bona fide, and the assignee would not be af~ fected by any payment made to the defendant, after notice of the assignment. As no payment could be effectual to discharge the note, if made to the defendant, under such circumstances, it must follow that a mere tender of the money, which he had no right to receive, could not render the obligation absolute. 3. What we have said would dispose of the merit? of the controversy, to a great extent, but the evidence shows what we consider a performance of the condition, even supposing the money due on the note was absolutely discharged. . The contract of the defendant, as we have said, is to make title to Jumper, or his assigns. It clearly admits of question, Whether the conveyance by the obligee of his interest in the land to a third person, with warranty, as was done in this case to Dixon Hall, would not give his grantee the right to have the title conveyed to him on payment of the sum stipulated tobe paid, but waiving the decision of the point, we think it clear, that a conveyance made to one in this condition, at the request of the obligee, made previous to the assignment of the bond, is precisely the same as if the conveyance had been made directly to him. 'That the direction to make the title was verbal only, does not, in our'judgment, impair its efficiency. If the defendant acted under this direction, and his c.on-yeyance to Mrs. Hall, was made before the instructions were countermanded, it seems to us this is a full performance of the condition of the bond. What we have said will suffice to show, that the demurrers to the second and third pleas were properly overruled, and those correctly sustained which apply to the replications to the third plea, and the third and fourth breaches of the conditions of the bond, set out in the replication to the first plea. 4. The demurrers applicable to the first, second, and fifth [884] breaches assigned in the condition of the bond, were likewise correctly ruled, as these breaches are defective in not setting out that the defendant had notice of the assignment of the bond to the plaintiff, when the latter asserts he tendered the money and demanded a deed. Conceding the defendant was then the holder of the note, he had no means to know that the plaintiff was entitled to demand the performance of the duty, unless advised of the assignment of the bond. [Williams v. Harper, 1 Ala. Rep. 502.] 5. The questions on the pleadings being thus disposed of, we shall examine those arising upon the admission of evidence. The deed from Jumper to the plaintiff, conveying the same lands as covered by the condition of the bond, was properly rejected, as it was wholly impertinent to any of the issues between the parties. These were — 1. That the note had not been discharged. 2, That the defendant, by the directions of Jumper, conveyed the lands to Mrs. Hall; and 3. That neither Jumper or the plaintiff had paid, or offered to pay the note to the defendant, or to Mrs. Hall, his assignee, and their mere statement is sufficient to show the deed offered had no relevancy whatever, and relieves us from the necessity of considering whether proof of the execution and consideration was requisite in addition to the certificate of probate. , 6. The admission of the deed from Jumper to Dixon Hall, might be supposed to fall within the same category, but a reference to the pleadings will show, that one of the issues was, that the land was conveyed to Mrs. Hall, by the request of Jumper. In making this fact appear to the jury, it might have'been, and possibly was; important to show the reasons why this request was made, and certainly none could be more satisfactory,- than to show he had conveyed the land by a warranty deed to Hall, who was her devisor, In this view the deed was relevant, and in the same connection it was unimportant whether registered or not registered, and renders it unnecessary to consider that question. 7. If we understand the exception in relation to the conversation between Jumper and the son of Mrs. Hall, it is, that the witness could not speak of it, because he was not a party pr privy to jt. We cannot intend that the court allowed the [885] witness to speak of a conversation which he did not hear, and conclude that privy here means, that he was not interested in the conversation. Any other sense would be doing injustice, as well to counsel as to the court, for we must conclude, that if the evidence was mere hearsay, it would- have been excepted to for that reason. As we understand it, the evidence was proper, for there is no reason why a witness should not speak of a conversation between others, or between another and himself, although he may have no interest in the subject spoken of. Any examination of the several charges is rendered unimportant, from the circumstance that those refused are not warranted by the rules we have already ascertained, and that given was at least as favorable to the plaintiff as it should have been. On the whole, we are satisfied there is no available error in the record. Judgment affirmed.