Bedell's Adm'r v. Smith , 37 Ala. 619 ( 1861 )

A. J. WALKER, C. J.

The declaration-was not objectionable, for the want of an averment of the tender of -a-deed to be executed by the defendant’s intestate ; because it shows that the vendor had no title, and also that he refused to make a title, when requested, for the reason that he had none. The law does not require-the useless ceremony of the preparation and tender of a deed under such circumstances. — Johnson v. Collins, 17 Ala. 318 ; Garnett v. Yoe, ib. 74. The plaintiff had a right of action as soon-as the condition of the bond was broken by a failure to convey ; it was not necessary that there should have been .an eviction of the plaintiff before the action was brought; and, of course, an averment of such eviction in the declaration was not indispensable. Having thus found the only two objections to the declaration urged in this court to be untenable, we decide that there wás no error in overruling the demurrer to the declaration.

[2.] The declarations of the defendant and her intestate conduced to show, both a refusal on the part of • the declarants to make title, and an inability to do so-; both of which were important facts in this case. For that reason, and probably for other-reasons, those declarations were admissible evidence.

[3.] The plaintiff’s cause of -action accrued before the Code went into operation, and is subject to the statute of limitations existing before - that -time — Pamphlet Acts of ’53-4, p. 71; Martin v. Martin, 35 Ala. 560. In the -law existing at the time when the Code went into operation, there was no statute of limitations applicable to a suit upon a penal bond, conditioned for the discharge of a duty, and not for the payment of money. The act of 1802, which prescribes a limitation of sixteen years, includes only actions upon leases under seal, single or penal bills for the-payment of money only, obligations with condition for the payment of money only, and awards under the seals of arbitrators for the payment of money only. — Clay’s Digest, 327,. § 81. A bond conditioned, as is the one here in suit, to make a title to land, is obviously not a cause of action embraced within that statute. It results, that there was •no error in any ruling of the court'adversely to the defense of the statute of limitations.

[4.] We think the court erred in excluding the deed offered in evidence. The purpose of its offer was to show the acceptance-of an act as a compliance, pro tanto, with the condition-of the bond ; and we -think it ought to have been admitted .in evidence, in connection with proof of its being made at the request of the plaintiff, and . of its acceptance by liim,, as a compliance with the condition of the bond pro tanto. It is true,-parol evidence was not admissible, to show the mistake in the description of the land. Such evidence would only be admissible in a direct proceeding for the reformation of the deed. The deed offered in evidence contains- a warranty of. title, upon which the grantor would be..-responsible. Now the giving of this deed, with a covenant of warrantyalthough the grantor may have bad no title to the land 'described in in, was a valuable consideration to-, support the plaintiff’s agreement to .accept it as a compliance, .pro tanto, with the condition of the bond, or as a satisfaction of it pro tanto ; and that agreement, being thus sustained by - a valid consideration, must be upheld. If it were not, it would result that, while the defendant • would be denied the benefit of it in this suit, sbe might be held .responsible at the suit of the third .person, in whose favor the deed was made, for a breach of warranty. If the deed'-.were reformed, the case would not be changed. The warraniydn it would still be a valuable consideration for its acceptance as a partial satisfaction of the bond ; and it would' b‘é¿most.unreasonable» that the defendant should be deprived of tho benefit of the partial satisfaction, and still held under responsibility to a third person, upon the covenants of a deed given in consideration of the agreement that it should be a partial compliance with the bond.

[5.1 We do not think there is anything in the point that the suit is not in the name of' the proper party plaintiff.

Reversed and remanded.