Holmes v. Richards , 67 Ala. 577 ( 1880 )

BRICKELL, C. J.

— The agreement between Richards and Holmes stipulated and appointed the contingency, on the happening of which the contract of sale was to be rescinded, and the parties placed in statu quo. That contingency has not occurred, and it is now legally impossible that it can ever occur. If there was a valid executory agreement of sale made by Richards with Rea, by the terms of which Rea acquired an equitable title to Richard’s estate in the premises, on Rea’s bankruptcy, all right to enforce the agreement vested in his assignee. The right of enforcing it the assignee has long since lost by the lapse of time. The suit instituted by Rea, referred to in the agreement, was determined adversely to him; and the agreement with him is -not now an incumbrance or cloud on Richard's title. It was only in reference to that suit, and its termination adversely to Richards, supporting the equity claimed by Rea, that Holmes stipulated to be relieved, or Richards consented to relieve him from liability to pay the purchase-money. That event not having happened, there is no equity in his claim to a rescission of the contract of purchase.

Taking the case in all its aspects, it is the one of not infrequent occurrence, a vendee in possession, enjoying all the benefits of the contract of purchase, and yet seeking to escape its obligations, by disputing the title of his vendor. There was no fraud practiced on the vendee. He was fully informed of the nature and character of the vendor’s title. It was that title, when the particular incumbrance, or cloud, to which the agreement refers, was removed, he contracted to purchase, and was satisfied to acquire. Against that incumbrance or cloud, and against all loss by reason of it, he carefully guarded himself, by stipulating for delay in the payment of the purchase-money, until it was removed, and, if it was not removed, by stipulating for a rescission of the contract. The cloud or incumbrance no longer exists; it can never involve him in loss, unless he passively submits to, or connives in its assertion. The contract into which he has entered, good faith and equity require him now to pay the purchase-m oney.

Affirmed.