Fitzpatrick v. Hanrick

ORMOND, J. The objection to this declaration, because it does not aver a demand of the obligors, before the action was brought, cannot be maintained. The case of Wade v. Killough, 5 S. & P. 450, establishes the necessity for such a demand, where the obligor covenants to make a démand on a day certain; but where the ability of the obligor to make title depends upon a fact within his own knowledge, or upon the happening of an event of which he has better means of knowledge than the obligee, it is his duty to give notice to the. obligee of his ability to perform his contract, and if this is not done, he cannot complain that the obligee has not demanded title. Such was the case of Williams v. Harper, 1 Ala. 502, where the obligor undertook to make title to a tract of land, if by a time stipulated he should become satisfied of his ability to do so, otherwise to pay a certain sum of money. This court distinguished the case from Wade v. Kil-lough, as there the title was to be made on a day certain, and not upon a contingency. So in this case, the title is to be made when a patent issues from the government for a particular tract to W. Walker, or to Hanriek, as his executor. This being a fact peculiarly within his knowledge, it was his duty to inform the plaintiff of the fact when it happened, and this knowledge on his part, will affect equally his co-obligors, as they have jointly bound themselves to convey to the plaintiff, upon the happening of this event, and it was their duty, as soon as it oc786 curre,d, to inform him of their ability to perform their covenant. The meaning of this obscure covenant seems to be, that as soon as a patent issued to Walker, or to Hanrick, as his executor, then the obligor’s bound themselves to convey; to the plaintiff, a half section of land in Macon county, worth $500. This is the most favorable construction of the instrument for the obligors, and as it is the one put upon it by the plaintiff in his declaration, we shall assume it to be correct. The necessary inference from this contract is, that the preliminary steps had been taken to authorize a patent to issue from the general land office, for the particular tract of land mentioned in the contract, to Walker, or to Hanrick as his executor, and the issuing of the patent is only referred to, to indicate the time when the plaintiff was to be entitled to a conveyance, either of that tract, or of a half section of land worth $500, in Macon county.- This right cannot be defeated by a contrivance, by which the patent is caused to be issued in the name of a third person, and whether this result is brought about by the intervention of Hanrick alone, or by all the ob-ligors, the result must be the same. The undertaking to convey the half section of land, on the happening of this event, not only admits its possibility, but also precludes the obligors from preventing its occurrence by their own act. To, permit the rights of the plaintiff thus, to be defeated, would be to allow the obligors, by their own act, to render nugatory and unavailing their own covenant,, in violation of the maxim, that no one shall take advantage of his own wrong. It is á rule of universal application, that where a right is to accrue upon the performance by one of an act, an offer to perform, is equivalent to a performance, if prevented by the party in whose favor it is to be done. The rule deduced from the facts, as governing this case, is but a modification of the same principle, both deriving their,,authority from the maxim just cited. The objection that there is no consideration for the covenant to convey the land, cannot be, taken by a demurrer to the declaration. The statute makes the writing evidence of the debt, or duty for which it was given, and if it did not [787] import a consideration at common law, such is the effect of the statute, as has been repeatedly held. The consideration can only be put in issue by a special plea, and the burden of proof will then be on the pleader. [Young v. Foster, 7 Ala. 424, and Holman’s heirs v. The Bank of Norfolk, at the present term, where this question is fully considered. The objection, that the contract is too uncertain to be enforced, is not well taken. It is to convey, on the happening of a certain event, a designated tract of land, or another half section of land of the value of $500, situate in Macon county. This alternative is for the benefit of the obligors, and as it was their duty, when the event happened, to notify the plaintiff whether they would convey the designated tract, and if not, which they would substitute in its place, in virtue of the power reserved; it was a matter which by the very terms of their contract, they engaged to render certain. Let the judgment be reversed, and the cause remanded.