Derrick v. Brown , 66 Ala. 162 ( 1880 )

STONE, J.

The present is a bill for specific performance, and to have title devested out of Derrick, and vested in complainant, Brown. The chancellor decreed in favor of complainant. It is contended for appellant, that under the substituted, or renewed contract, between Stephens and Brown, there can be no recovery, because said renewed contract was simply oral, not evidenced by any writing, and by its terms it was not to be performed within a year; and Derrick pleads that fact in bar of complainant’s recovery. — Code of 1876, § 2121, subd. 1. The original contract of sale was in writing, and signed by Stephens. This contract was made in 1863, and was in fact an exchange of lands. The title to the lands given by Brown to Stephens, in part payment of the land sold by the latter to the former, having failed, Brown, in consideration thereof, promised to pay Stephens the value of said land so lost to Stephens — that value to be ascertained in an agreed manner. It was thus ascertained to be- $302. Brown and Stephens were each examined as witnesses, and to this extent their testimony agrees. In one respect they differ. Stephens testifies, that the time was certainly fixed for the payment of the money ; and that time, as testified by him, was less than twelve months from the making of the promise. If this be true, then, of course, the plea of the statute of frauds is not made good. But a suit for the land was pending, instituted by an outside party, under a claim of title, alleged to be paramount alike to that of Stephens and of Brown. Brown testifies, that his promise was to pay that sum, when said suit was decided. It could not be then known when the suit would be tried and determined; and hence it could not be affirmed that, by the terms of the agreement, the contract was not to be performed within a year. So, in either aspect, the contract, as proved, was not within the statute of frauds. — Browne on Stat. Frauds, chap. 13, §§ 274, 276.

In the next place, Derrick sets up in defense that he is a bona fide purchaser of the land, having paid the purchase-money, and received a conveyance, without knowledge or notice of Browne’s claim, which was but an equity. To this defense three several objections are urged. First, it is claimed that Derrick, when he purchased, had notice of Brown’s prior purchase and equity. On this question of' notice, Derrick and’ Stephens are directly at issue in their testimony; the latter swearing positively that notice was given, and the- former, with equal emphasis, denying such notice. Brown somewhat corroborates Stephens, as to proof of notice. In the second place, it is contended that Derrick received the title to the land in fraud and secret trust, first, to repay himself for an advance (much less than the value of the land) he had made to Stephens, and to account to Stephens for the balance. On this question, Stephens and Derrick are equally and irreconcilably opposed in their testimony. In support of Stephens’ version, it must be conceded that the lands, together with another tract, were purchased at a very low figure; and Derrick’s explanation, as to why a part pf the purchase price was withheld, and how such balance was to be applied, is somewhat singular. He testifies that such, balance was to be used in paying Stephens’ pro rata of the expenses of the suit then pending for the recovery of the land. Now, if the suit for the land was unsuccessful, there would be no pro rata of costs adjudged against him, to be paid by Derrick. If Stephens lost the suit, then Derrick would lose the land — lose the two hundred and eight dollars he swore he had paid in cash, and, in addition, be required to pay Stephens’ pro rata of the expenses of the suit, to the extent of the sum withheld — ninety-two dollars.

In the third place, it is urged that Derrick received from Stephens only a quit-claim deed, and therefore can not claim to be a bona fide purchaser.—Smith v. Branch Bank, 21 Ala. 125, 134-5. The deed is by Stephens and wife, and is without express covenants of warranty. Its granting clause is, “ do bargain, sell and quit-claim, unto the said Derrick, and to his heirs and assigns forever, all our and each of our right, title, interest, estate, claim and demand, both at law and in equity,” &c. Now, though the words “bargain, sell,” are words of implied warranty under our statute, if used without qualification (Code of, 1876, § 2193); yet, it clearly appears from other words in this conveyance, that they were not so intended. The deed employs the word quit-claim, and expressly limits its granting effect to the “ right, title, interest, estate, claim and demand,” of the grantors. They conveyed no title other than that they owned, legal or equitable, in possession or in expectancy. Derrick’s deed is but a quit-claim, and this precludes him from setting up the claim of bona fide purchase without notice.

The chancellor granted complainant relief. In doing so, he pi’onounced on one or more of the disputed questions of fact noted aboye. We can not say we are clearly convinced he erred.—Rather v. Young, 56 Ala. 94; Bryan v. Hendrix, 57 Ala. 387.

Affirmed.