Byrne v. Marshall , 44 Ala. 355 ( 1870 )

B. F. SAFFOLD, J.

A construction of the writing given by Marshall to William Johnson will dispose of the assignments of error. This writing, with the evidence of William Johnson, sufficiently shows that it was made on account of Johnson’s dissatisfaction with the valuation of his property; that it formed a part of the consideration of the deed from Johnson to Marshall, and ought to be considered in connection with it; that the two instruments evidence but a single contract. They were made on the same day, relate to the same subject-matter, and one refers to the other. — Strong's Ex’rs v. Brewer, 17 Ala. 706; Sewall v. Henry, 9 Ala. 24; Doe, ex dem. Holman v. Crane, 16 Ala. 577.

What must be the legal effect of the two writings embodied in one instrument ? What estate was vested in Marshall by Johnson’s deed? Afee absolute. How was it affected by Marshall’s writing ? It was liable to be divested by Johnson’s selling all or any part of the property, within three years, for a sum equal to the prescribed valuation and the accrued interest and taxes, or by refunding that amount of money to Marshall. Such an estate is one upon condition subsequent. — 2 Coke upon Litt. 201, a; 4 Kent’s Com. 120; 7 Cranch, 237; 14 Pick. 467; Sewall v. Henry, 9 Ala. 24. “ It stands indifferent whether it be the speaking of the grantor or grantee; for in that ease it shall be referred to the grantor, as no condition can be reserved or made but on the part of the donor, lessor or feoffor”. — 2 Coke on Litt. 203, b, note 1.

How is the defeasance in .this deed to affect a purchaser from Johnson'? Johnson is under obligation to sell for more than the valuation and the interest and taxes, but this requisition is complied with if the average of the sales is more. Must the purchaser see to this? When the grantor in any conveyance reserves to himself, for his own benefit, an absolute power of revocation, such grantor must be taken as the absolute owner of the estate conveyed, as to the rights of creditors and purchasers. — ReV. Code, § 159!. Every power of disposition is deemed absolute, by means of which the donee of such power is enabled in his life-time to dispose of the entire fee for his own benefit. — Rev. Code, § 1598. Marshall'having suffered Johnson to reserve a power of defeating his grant, though upon conditions good between them, must be deferred to one to whom he has virtually given permission to purchase the estate. — Sugden on Vendors, 2d Part, m. pp. 155, 180; Same on Vendors and Purchasers, (6th, ed.) pp. 640, 641. Whatever advantage, if any, Marshall might have derived from the record of his deed, was nullified by the possession of Johnson, the one being as notorious as the other.

I he writing of Marshall was a clear authority to Johnson to sell. — Morrow v. Higgins, 29 Ala. 448. Johnson was not his mere agent. The power reserved to him, was not a power of attorney, it was a power coupled with an interest and irrevocable. — Rev. Code, §§ 1608, 1612. Though a seal is not necessary to convey the legal title, this writing related to the deed, and was clothed with its formalities. Habergham v. Vincent, 2 Vesey, 228; Rev. Code, §§ 2599, 1535. The moment Johnson sold the lot, Marshall’s title was divested in favor of the purchaser, who was remitted to Johnson’s original title, by operation of law. — Rev. Code, § 1594. The charges given and refused by the court, not being in conformity with the principles declared in this opinion, the judgment is reversed and the cause remanded.