Robbins v. Webb , 68 Ala. 393 ( 1880 )

SOMERVILLE, J.

The main question in this case, a solution of which determines the equity of complainants’ bill, is, whether the two written instruments, the deed and the bond, which are made exhibits to the bill, are parts of one and the same contract, and, as such, can legally be construed together.

The one is a deed from Gregg to Smith, dated February 26th, 1859, conveying certain land to the latter in fee simple, without condition or limitation.

The other is a penal bond, dated February 19, 1859, reciting that Alexander McLeod had “bought ” a certain tract of land from said Gregg, which is shown to be a part of the same lands conveyed to Smith. This, bond is signed by both Smith and McLeod as obligors, and binds each of' them, their representatives and assigns, “ not directly or indirectly to permit or allow a warehouse or place for the shipping or receiving of goods either upon or through said, premises,” and agreeing to give Gregg “ the free and unmolested use of the premises for the delivery of spars and lumber.” Gregg was the proprietor of a warehouse, at or near the same landing on the Alabama river, situated on land which, on his decease, descended to the complainants who are his heirs at law.

The appellee, Webb, purchased the land described in the bond from Smith, with full notice of the existence and con- - tents of the bond, and erected thereon a warehouse, and proceeded to carry on the business of shipping and receiving goods. This bill is filed to enjoin him from continuing to engage in such business as warehouseman, in alleged violation of the covenant of his vendor, Smith, not to do so.

The deed and the bond may be connected together by proper averments, we think, without violating the cardinal rule, applicable alike to couits of law and equity, with of course established exceptions, that parol evidence is not admissible to contradict, qualify or vary a written instrument. 2 Story Eq. Jur. § 1531. These two instruments relate in part to the same subject matter, and, though of different dates, were operative only from the date of delivery. Hence, parol evidence is admissible to show the true date upon which either or both of them were executed, even though different from those appearing on the face of the instruments themselves. Miller v. Hampton, 87 Ala. 342. So there is nothing repugnant between the recital of the bond that McLeod had “ bought,” and the fact of the conveyance of title being made to Smith, as a bond for title may have been first made to the former, and afterwards a deed absolute to the latter. Extrinsic evidence would be admissible to show ail the facts and circumstances, not inconsistent with these instruments, surrounding the main fact, which is here the transaction of sale, connected or contemporaneous with, or in any manner proximately throwing light upon it. It is not necessary that these events, so proved,-should have transpired on the.same day in order to be contemporaneous within the meaning of the law. The averments in the bill and proposed amendment, if true, are sufficient to authorize the two instruments to be construed together.—2 Story’s Eq. Jur. § 1531; 4 Phil. Ev. (C. & H’s Notes), 1421-4; 2 Parson’s Cont. (6th Ed.) 553; 1 Whart. Ev. § 259; Holman v. Crane, 16 Ala. 577.

The contract in question was not void as against the public policy. Contracts restraining the exercise of any trade, profession or business, are legal when there is a fair and reasonable ground for the restriction, and they are confined to a limited locality, not unreasonably large or extensive. Mayor v. Pattison, 10 East. 136; 1 Addison on Contr. § 272; Noble v. Bates, 7 Cow. 307.

A covenant of this character, furthermore, “ runs with the land,” and the right to enforce it passes to the personal representative, heirs, and assigns of the covenantee. It is also binding on the personal representative, heirs and assigns of the covenantor, and also upon all purchasers from him with notice of the encumbrance.—Spencer's Case, 1 Smith Lead. Cases, (Hare & Wall.), 140, note.

And a court of chancery will, in such a case, restrain by injunction the.breach of the conditions or terms of the covenant, asserting jurisdiction by an equity in the nature of specific performance.—Guerand v. Dandelet, 32 Md. 561 (3 Amer. 164); Kemp v. Sober, 1 Sim. (N. S.) 520; 3 Wait’s Act. & Def. 693, § 6.

The amendment proposed to the bill of complaint should have been allowed.

The chancellor erred in sustaining the demurrer and dismissing the bill. His decree is reversed, the injunction reinstated and the case remanded.