Allen v. Greene

D ARGAN, C. J. This was an 'action of covenant brought by the plaintiff, as administrator of ’Lecel Bruton, on a bond payable to the intestate in the penal sum of four thousand dollars, which was executed by Resen 'R. Chilton and the defendant. The bond is subject to the following condition: “ that whereas, the said Resen R. Chilton had bargained and sold unto the said Lecel Bruton, a tract of land, being the south-east quarter of section fifteen, township fifteen, range six east, containing one hundred and sixty acres more or less : Now we the above bounden are to make unto the said Lecel Bruton, a good andsuffi- . cient title in fee simple, so soon as a title can be obtained from Jesse Driver, and as soon as this deed is made, this obligation [39] is to be null and void, otherwise to remain in full force and effect.” A verdict and judgment were rendered infavor of the defendant, and the plaintiff brings the case to this court. It is now contended by the defendant in error, that the evidence did not show a breach of-the condition of the bond in the life-time of the intestate, and therefore, the plaintiff is not entitled to re-cover. The bond'be'ars-date the 12th of November, 1840, and it was shown that the intestate died in June, 1844. Upon the execution of the bond, he entered into possession of the land, and continued in possession until his death. It was also shown that the title to the land was neither in the obligors, nor in Jesse • Driver, but that the fee simple was vested in one Eli M. Driver, and there was no attempt to show that the obligors had executed to the intestate, or to his heirs, a deed conveying the fee simple ■title to the land, or that they or either of them had acquired the ■title from Eli M. Driver. ■ The general principle of law applicable to the question, whether there-was a- breach of the condition in the bond in the life-time of the inte&'ta-te, is this, when no time is limited for the performance of a covenant, it must be done within a reasonable time. — Shep. Touch, 166; Cruise’s Dig. by Greenl. vol. 2, p. 445. In the case of Garnett v. Yoe, 11 Ala. 14; we held that if a party bound himself to -execute titles to land, so soon as he could obtain it, and neglected for two years to make any effort to procure the title, that this -was prima facie a breach of the condition of the bond, firthe-eas'e before-us, the intestate lived more than three years after the -making off the-bond, during which time the obli-gors did not enable themselves to -comply with the condition of their bond, ñor does it appear that any effort was made by them to procurethe title. It is therefore clear, under the authority of Garnett v. Yoe, that this was prima facie a breach of the condition of the'bond in the -life-time of the intestate, and his administrator is therefore the- proper party to bring suit, even if • the bond cOiild be considered 'as a covenant that run with the 'land. But I cantiof -yield my assent, that the bond in this case is a covenant that descended to the heir, and that he must sue for a 'breach happening after the death of the ancestor. The rule of ■ the common law is, that the realty descends to the heir, and all •covenants real, which run with the land, go to the heir on the [40] death of the ancestor as part or parcel of the freehold; and therefore, he must .sue for a breach after the ancestor’s death. — Chitty’s Plead. 19; Williams Ex’r.. yol. 1, 518; Shep. Touch. 175; Cruise’s 1%. by Greenl. vol. 2, title 82, p. 458. But to enable the heir to sue, he must show that the land descended to him. If he took no title by descent, I do not see how he can sue on a covenant respecting it. In the case of King v. Jones, 5 Taunton 418, land was conveyed to the ancestor, and the grantor covenanted for further assurance on request; the ancestor thinking a fine was necessary to perfect his title, requested the grantor to have it levied, which, however, .was not done, and after his death, the heir Avas evicted, for the reason that the fine had not been levied. After the eviction of the heir, the executor of the testator brought covenant, but the court held, he could not recover, because the land had descended to the heir, and the ultimate damages had been sustained by him. So in, the case of Kingdon v. Nottle, 1 M. & Selwyn, 355, the Court of King’s Bench held, that the executor could not recover upon a breach of covenant with the testator, that he, the defendant, had a good title to convey, as the executor suffered no damage in his life-time, and the land descended to the heir, who was evicted. On the other hand, all the authorities agree, that if the covenant is broken in the life-time of the ancestor by his eviction, then his executor or administrator must sue, for the covenant is then turned into a mere chose in action, and the heir takes nothing by descent. Let us test the case before us by this principle. It cannot be pretended that the bond gave to the intestate any title to the land, for the bond shows upon its face, that the title was neither in the obligors nor the obligee, and as the intestate had no title that could descend, his heir could take nothing by descent. The bond is a contract upon its face for the payment of money, the condition of which might be saved by procuring the title to. the land, and conveying to the obligee, but by its execution and delivery, the intestate acquired no title to the land, neither at law nor in equity, for the title was outstanding in a stranger to the bond, and so continued until the death of the ancestor, and even to the present time; the heir therefore could take nothing by descent, and the administrator is the proper party to sue, whether the breach of the condition happened before or after the death of the [41] intestate. It is not, however, to be understood1 that we intend to decide, that the executor or administrator may sue in all cases on a bond for titles, for a breach of the condition after the death of the obligee; for if the obligor had the title to-the land, it maybe that in equity the heir would be considered-,as taking the fee by descent, and therefore entitled to file a billor a specific performance, and possibly to sue on the bond for- a breach of the condition after the death of his ancestor. This question is not before us, and therefore we do not intend to decide it. But I intend to confine the decision to this point: that where the obli-gor has no title, and the bond shows that he is to procure the title from another and to convey to the obligee, and the obligor never obtains the title, nor procures a conveyance of the title to the'obligee, the heir cannot take the land by descent, nor sue in his own name for a breach of the condition, whether that breach happened before or after the death of the ancestor. . 2. It also appeared from the evidence that Green, the defendant, was the security of Resen R. Chilton, and that in a short time after the execution of the bond, and after the intestate had taken possession of the land, but before he had paid any part of the purchase money, that Green informed him there was difficulty about the title of the land; that the title was in Eli M. Driver and not in Jesse Driver; that he suspected there was something wrong on the part of Chilton, and then requested the intestate not to pay the purchase money until he got the title, and if he did, he must do it at his own risk. The intestate said to Green in reply, that he would not' pay the purchase money until the matter was arranged, and that he would see Chilton and get him to arrange it, and if Chilton would not, he would see Driver and get it arranged with him before he would pay the purchase money. It also appeared, that at the time of this conversation Chilton was in possession of considerable property, but is now insolvent. The court in effect charged the jury, that if they believed this testimony, and that Green was lulled into security by Bruton, and induced to believe that he was safe, and that Bruton did nothing in his life-time but slumbered on his rights, then the plaintiff could not recover. I can see nothing in the conversation between Bruton and Green that will discharge the latter from the obligation of his bond, although the purchase money was paid to Chilton after42 wards. There are but three modes by which a security can be discharged from his contract. The first is by payment or satisfaction of the debt; the second by release; and the third by the acts or conduct of the creditor in violation of his duty to the security, and which are or may be prejudicial to his interest. It is not insisted that the evidence shows either a satisfaction of the bond, or an intentional release of the security; but it is insisted that the payment of the purchase money by the obligee after notice that the title was not in Jesse Driver but in Eli M. Driver, and his promise not to pay it until the difficulty about the title was arranged, must operate in law as a discharge of the security. To test this argument, let us suppose the purchase money never has been paid, and that the reason of it was that Chilton, the principal in the bond, could not procure the title. The obligee then would have faithfully observed the promise he made to Green, the security, in withholding the payment of the purchase money, but surely he would be entitled to sue for a breach of the bond. If he, the obligee, had not violated the contract on his part, the non-payment of the purchase money would go in reduction of the damages, not in discharge of the action. Again, let us suppose the terms of the contract such that Bru-ton, the obligee, could have refused to pay the purchase money until the title was secured to him, and being informed of the difficulty about the title, he. promised Green, the security, not to pay the purchase money until the title was arranged; but disregarding his promise, he did pay when not compelled by his contract to do it — what would be the rights of Greene 1 He could not, in my judgment, claim.- to be released from the bond. He could in the case supposed,-only claim a reduction of the damages to the extent of the-.purchase money. The rule, we think, is this : if a creditor gives up or releases a collateral security for the payment of his debt, without the consent of the surety, he, the surety, will be discharged to the extent of the value of the collateral security only.—Neff’s Appeal, 9 Watts & S. 3; Baker v. Briggs, 8 Pick. 122. If we consider then that Bruton, the obligee, had the right under his contract to hold on to the purchase money, because the title was in E. M. Driver, and his promise to Green bound him not to pay until he obtained the title, still there has been a breach of the condition of the bond; and Green could only insist that the damages be reduced to the [43] •extent of the purchase money. In any point of view, whether the purchase money has been paid or not by Bruton, if he has not violated the contract on his part, the action can be sustained; and consequently the instructions of the court were erroneous. It will be observed, that we have argued the case upon the supposition that the purchase money has not been paid, and also upon the supposition that it had been paid, after the promise made by Bruton to Green. In conclusion, we must remark, that the record furnishes no evidence that Bruton ever paid the purchase money, nor does it show when, or under what circumstances, he was bound to pay. • If upon another trial, the terms of the contract in relation to the purchase of the land are disclosed, and it appears that Bru-ton paid the purchase money, in conformity with the terms of his contract, and could not have refused to do it without a breach on his part — in that case, we do not intend to decide whether or not Green could insist on reducing the damages to the extent of the purchase money. We only intend to decide, that if Bruton could have retained the money consistently with his contract until the title was secured to him, he was bound by his promise to Green to do it; and if in violation of this promise he paid the purchase money over to Chilton, when he had the legal right to retain it, that Green can reduce the damages to the extent thereof. There is no error in the record, save in the instructions given to the jury^ and for this the judgment must be reversed and the cause remanded.