Collins v. Whigham

BRIOKELL, C. J. 1. The bond for title, the instruments by which Wilkes promised to deliver the three bales of cotton annually, as the consideration of the purchase of the lands, and the endorsements thereon were cotemporaneously executed, relate to the same transaction, and must be construed together as if they were a single instrument. — Sewall v. Henry, 9 Ala. 24. 2. The contract which they import is in the alternative, conferring on Wilkes the right either to become the purchaser of the lands by delivering the number of bales of cotton specified annually as the consideration of the purchase, or, to deliver a smaller number as rent, and become a tenant. Whether he would become a purchaser or a tenant rested in his own election, until the time for the payment of the first annual installment. The principle is, that “ in case an election be given of two several things, always he that is the first agent, and which ought to do the first act, shall have the election.” If he failed to make the election at that time, then Mrs. Whigham could elect to treat him as a purchaser, bound to the delivery of the cotton specified as the consideration of the purchase, or as a tenant liable for the less quantity as rent. The election once made by either was, [441] without the consent of tbe other, irrevocable. — Chitty on Con. 1061. 3. The evidence seems undisputed that in 1876, before the maturity of the first note or instrument, Wilkes directed his son to take two bales of cotton to the gin for the purpose of paying the rent, indicating that he intended to elect to assume the relation of tenant, and not that of purchaser. Mrs. Whigham was not informed of this intention, and the death of Wilkes prevented him from consummating it. After his death, there was no election by his personal representative, so far as is shown by the bill of exceptions. The election, whether made by Wilkes or his personal representative, depended on actual performance of one or the other of the alternative stipulations — either the payment of the quantity of cotton specified as the consideration of the purchase, or of the quantity specified as rent. There being no performance, Mrs. W., as she had the right, elected to treat it as a contract of renting, and not of purchase. 4. The lien the statute creates for the payment of rent, arises only from the relation of landlord and tenant, and not from that of vendor and vendee. — Tucker v. Adams, 52 Ala. 254; Hadden v. Powell, 17 Ala. 314. The existence of the relation, may rest in the election of the parties, and depend on the performance by the tenant of one or the other of the alternative stipulations in the contract into which he enters. 5. When the election is manifested, or there is performance, or non-performance of the alternative stipulations, creating the relation, the act must be referred to the time of making the contract, and the relation regarded as commencing and continuing from that time. All the rights and incidents of the relation, as between the parties, and all persons who have not, without notice, acquired rights which may be impaired, will attach from the time of making the contract. The landlord will become entitled to the lien for the payment of the rent, the statute creates, and may, for its enforcement, pursue the statutory remedy. 6. The appellant had notice of the contract between Wilkes and Mrs. Whigham, and having notice of it, knew that it could be converted into a contract of renting at the election of either. Whatever right to, or interest in the cotton grown on the premises he acquired, was subordinate to the lien of Mrs. Whigham. The rulings of the Circuit Court were in accordance with these views, and the judgment is affirmed.