Burkett v. Munford

BRICKELL, C. J. It has been adjudged in this court, that when a vendor of lands executes a bond to make title generally, and the vendee gives his note or notes for the purchase-money, payable on a day certain, in a bill to enforce the lien for the payment of the purchase-money, it is not necessary the vendor should aver that he has offered, or his readiness and willingness [427] to make title. The payment of the purchase-money is not dependent on the making of title; until it is paid, there is no duty resting on the vendor, of 'which the vendee can demand performance. The principle is one of general and frequent application, that when money is to he paid at an appointed time, and the day of payment is to happen, or may happen, before the thing which is the consideration of the payment of the money, is to be performed, the performance of the thing is not a condition precedent to the right to demand the money.—George v. Stockton, 1 Ala. 136; Chapman v. Ghunn, 5 Ala. 397 ; McLemore v. Mabson, 20 Ala. 137; May v. Lewis, 22 Ala. 646 Teague v. Wade, 59 Ala. 369 ; Broughton v. Mitchell, 64 Ala. 210. When, however, as in McKleroy v. Tulane, 34 Ala. 78, the contract of purchase is founded on mutual and concurrent conditions — when the payment of the purchase-money, and the execution of the stipulated conveyance, are intended tó be concurrent and contemporaneous acts, each party bound on his part to'perform at the same time; the bill of the vendor, to enforce the lien, so far partakes of the character of a bill for specific performance, that he must aver his readiness and ability to perform on his part at the appointed time, or the vendee is not placed in default. The bond executed to the appellants stipulates, generally, for the making of title, on’the payment of the purchase-money; and the bill, in its averments, is sufficient, under our former decisions, without averring the readiness and ability 'of the vendor to make title when the purchase-money is paid. 2. It is evident, from the allegations of - the cross-bill, that there is no fraud or misrepresentation imputable to the vendor. The condition of the title was known to the vendées; and whatever of doubt may rest on it, each party supposed would have been removed before the time appointed for full and final payment of the purchase-money. The vendees were let into immediate possession, and have since retained and enjoyed’it, without hindrance or molestation. When a contract of purchase is free from fraud, we know of no authority — there is none certainly in the decisions of this court — which will justify a court of equity in interposing, at the instance of the vendee, to rescind the contract, because of the vendor’s want of title, or because the title is defective, while he retains possession of the land, taking the benefit of the contract; unless it is clearly shown that injury must result to him from the abandonment of the possession. When he has paid part of the purchase-money, or has made valuable improvements, if the vendor is insolvent, the vendee may, for his own indemnity, hold the pos [428] session, and claim a rescission, because the vendor can not make the title he had bound himself to make. But the cross-bill does not aver the insolvency of the vendor, if it is conceded that it discloses real and substantial defects in the title. The only averment is, that he “ has not property in the State of Alabama, or elsewhere, within the knowledge of respondent, except the interest before referred to, in the estate of Paul J. Munford, his son.” This is obviously far from an averment of the insolvency of the vendor. The value of the interest of the vendor in the estate of his son is not averred, nor is it denied that it is of ample value to indemnify the vendees, if the title should finally prove defective, and, in consequence, injury should result to them. Nor can a mere general, averment, that the vendees have not knowledge that the’vendor has property sufficient to respond to them, be, in any case, accepted as an averment of the inability of the vendor to respond in damages; or of his insolvency. It may be, they have not been diligent in their inquiries as to his ability and solvency, and have not acquired the knowledge which they could have acquired. It is not on general, indefinite, and vague allegations, that a court of equity will intervene to rescind contracts fairly and deliberately made. If the residence of the vendor without the State would, in any event, justify the court in entertaining a bill for the rescission of the contract, while the vendees remain in possession, it is, in this case, no good cause or reason for interference. The vendor was known to reside without the State, when, the contract was made. Then and now, he and the vendees were and are resident citizens of the State of Tennessee; and it was not in the contemplation of either that remedies against him for a breach of his contract would be here pursued.—Griggs v. Woodruff., 14 Ala. 9. Under the facts of'the case as shown by the cross-bill, a court of equity can not be active in rescinding the contract of purchase, if there be defects in, or doubts resting on the title, but must leave the vendees to their legal rights. Beck v. Simmons, 7 Ala. 71; Duncan v. Jeter, 5 Ala. 604; Lang v. Brown, 4 Ala. 622; Parks v. Brooks, 16 Ala. 529 ; Read v. Walker, 18 Ala. 323; Garner v. Leverett; 32 Ala. 410. We find no error in the decree of the chancellor, and it is affirmed.