Whitehurst v. Boyd , 8 Ala. 375 ( 1845 )

COLLIER, C. J.

The writings declared on, present a case unlike any of those cited by the plaintiff’s counsel. Here the defendant promises to pay to the plaintiff’s agent, &c. certain sums of money, for a consideration expressed at definite periods; provided, the titles which the plaintiff, as agent, executed to him, are good and sufficient, &c. Now although times are prescribed when these payments shall be made, yet the defendant’s undertaking is not absolute, but is subject to the condition we have stated ; and though it may not be necessary to entitle the plaintiff to recover, that he should show that he conveyed a good title, and that the land was unincumbered, it is competent for the defendant to prove the reverse. He provided by the terms of his contract that the existence of either of such a state of things should prevent a liability from attaching, or absolve him from the undertaking to pay. We can conceive nothing in the nature of the agreement, or in the language in which it is expressed, that should prevent the Courts from giving effect to it according to the intention of the parties. *

The rules by which the dependency or independency of covenants are to be determined, apply with all force to unsealed writings. In such cases the intent of the parties are said to extend a controlling influence; and for the purpose of ascertaining this, regard must be had to the whole instrument — no particular form of words being necessary to constitute a test, whether the covenants are, or are not independent. [2 Pick. Rep. 451.] In Watts v. Sheppard, 2 Ala. Rep. 425, we said, that the first general principle in the construction of contracts, is, if possible to carry into effect the intention of the parties. To do this the subject matter of the contract, the situation of the parties, the motives that lead to it, and the object to be attained by it, are all to be looked to. Further, that such a construction must, if practicable, be placed upon a contract, as will make every clause operative. To the same effect see my opinion in Bates & Hines v. The State Bank, 2 Ala. Rep. 451; 2 Cow. Rep. 781; 3 Miss. Rep. 447; 1 Harring. Rep. 154.]

The case before us, bears no analogy to George & George v. Stockton, 1 Ala. Rep. 136, or any of our previous or subsequent decisions in which the same legal questions are discussed. In that case, it is said to have been “ repeatedly adjudged, that the vendee of real estate, who has executed his note for the payment of the purchase money on a day certain, and received from the seller a bond conditioned to make title generally, cannot successfully resist an action at law on the note, upon the ground that no title had been made.” “ This principle rests upon a rule which has been often applied to covenants, viz: when the money is to be 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.” The condition of the bond in that case, it is true, was expressed in unusual terms, so as to leave its meaning open to construction. After describing the land, it stated the amount of the purchase money to be “ four hundred dollars, payable on the 25th day of December next: now if the above bound John C. Stockton, shall make, or cause to be made, to the said James C. George, a good and equitable title to the above described land, then he, the said James C. George, shall pay the said sum of four hundred dollars, then the above obligation to be void, otherwise to remain in full force and virtue.” We were of opinion, that considering the note and bond, as evidencing, but a single contract, the making the title was not a condition precedent, to the right to demand the payment of the note. See also, 1 Chit. PL 315; 2 Blacks. Rep. 1313; Willes’ Rep. 146, 496.

It is unquestionably true, that where different instruments of writing are made at the same time, between the same parties, and relating to the same subject matter, they constitute but one agreement ; and the Court will presume such priority in their execution, as will best effect the intent of the parties. [3 Mass. Rep. 138; 9 Cowen’s Rep. 274; 5 Pick. Rep. 395; 10 Id. 250, 302; 13 Wend. Rep. 114; 10 Mass. Rep. 327, 379; 11 Id. 302.] And it may be added that such instruments are to be construed together. [5 Pick. Rep. 181, 395; 10 Pick. Rep. 298; 13 Mass. Rep. 87.] But this proves nothing adverse to the defence set up in the present case. Here, although the defendant promised to pay upon certain days, yet he limited his liability by a proviso, which we have already stated, and said that the existence of the state of things against which it guarded would furnish a bar to the action. See the Bank of Columbia v. Hagner, 1 Peter’s Rep. 465.

An undertaking to convey a title, it hqs been held, means a legal title ; and where the right to demand the purchase money is dependent thereupon, the convepance of such a title is a conidtion precedent. [Clute v. Robinson, 2 Johns. Rep. 613; 10 Id. 266; 3 Munf. Rep. 159; 6 Id. 170; 12 Johns. Rep. 436;. Wright’s Rep. 644; 1 Blackf. Rep. 380; 2 Greenl. Rep. 22; 2 Sergt. & R. Rep. 498.]

It is argued for the plaintiff that the proviso in the writing declared on, is in effect nothing more than an undertaking to execute a “ good and sufficient” deed of ccnveyance, and that the issue which it was proposed by the declaration and replication to form, narrowed the inquiry to the sufficiency of the deed, in point of form. We will not stop to inquire whether a covenant to execute a deed of that character, refers merely to the deed and not the title; and is consequently performed by the delivery of a formal conveyance. However this may be, we think it perfectly clear the case at bar does not come within the influence of. such a principle. Here the writings recite that the deed was already executed, and the defendants object was tobe secure in the payment of the money, by reserving to himself the right to scan the title, which the plaintiff had undertaken to convey, and if it should be found to be defective, or incumbered, then to withhold the purchase money. The language employed, and the obvious purpose of the proviso all speak such to have been its meaning.

In respect to the insufficiency of the deed to convey the legal title of the plaintiff’s principal, we need not inquire, since the plea alledges that the title to one quarter section of the land which it undertook to convey, was not in Giddins when the deed was executed, but was then, and had been ever since, in Messrs. Ha-gerty & Co. This plea, if true, is an answer to the action, and in the state of the pleadings, its truth is not open to contestation. The view taken shows that the replication is bad ; it answers the plea but in part, by asserting that the deed was executed under a power, which is set out in extenso, and thence concluding that it is “ good and sufficientwhile it leaves unanswered the allegation of Giddins’ want of title.

If the vendor cannot make a good title so as to authorize him to demand the purchase money, perhaps a Court of Chancery is competent to administer relief, so far as may be compatible with the contract of the parties, and in harmony with the justice of the case. But we will not undertake to prescribe a remedy. The decision of this cause does not require it.

It remains but to add, that the judgment of the Circuit Court is affirmed.