Munford v. Pearce , 70 Ala. 452 ( 1881 )

SOMERYILLE,-J.

The rules of equity jurisprudence and practice certainly recognize the principle, that a bill for specific performance may be filed, by a vendor against a vendee, to compel the latter to accept a deed of conveyance to land. In such cases, however, there must be an offer made by the complainant to convey, on the payment by the defendant of the purchase-money.—Waterman Specif. Perf. §§ 446-447; Stevenson v, Maxwell, 2 N. Y. 408.

Technically, the, demurrer of appellant may have been well taken, and should have been sustained, so far as it had reference to this aspect of the 'bill; for, among other probable defects, the bill contained no offer to do equity by conveying title on the payment of the purchase-money by Munford, the appellant.

Yet the principle applies here, that, under the general prayer for relief, a complainant may obtain any appropriate and consistent relief authorized by the statements made by the bill, although he may be mistaken in the special relief prayed.—May v. Lewis, 22 Ala. 646.

It is clear that the bill contains every essential averment necessary for the enforcement of a vendor’s lien. It alleges a sale of lauds, the retention of the title by the vendor as a security of the purchase-money, and that the debt is due and unpaid. Nothing more than this was requisite to bring into'activity the conscience and jurisdiction of the court. — May v. Lewis, supra. And although a bond for title was executed by the vendor, no averment was required of his readiness or willingness to make title, where the purpose of the sriit is merely to enforce the vendor’s lien for the unpaid purchase-money; unless- there is a special stipulation, that the purchase-money shall not be due and payable until a deed of conveyance is made.—Dennis v. Williams, 40 Ala. 633 ; Burkett v. Morford, at the present term; McIndoe v. Morman, 7 Amer. Rep. 96.

The appellant went into possession of the lands in controversy, under a valid contract made with the appellee for their purchase. He was, at the time, fully advised of the fact that her title was defective, and that an act of .the legislature would be requisite to enable her to convey to him. Any charge or presumption of fraud, therefore, based on that ground, would be repelled; and it would be sufficient, if the vendor have title when the appellant is in condition to demand a deed of con-, veyance, by offering to pay the notes_ due for the purchase-money. —Teague n. Wade, 59 Ala. 309.

The possession of the appellant to these lands has, moreover, never been disturbed, but he has enjoyed their use and occupation without hindrance or molestation. If he desired to retain the lands, and obtain a conveyance of the legal title, a cross-bill was the proper remedy.—Broughton v. Mitchell, 64 Ala. 210. So, if he desired relief on the ground of fraud, mistake or warranty, or indemnity for part payment of the purchase-money or the construction of valuable improvements, the insolvency of the vendor-being' alleged, he might, by proper proof, have obtained relief by cross-bill.—Tobin v. McMahon, 61 Ala. 125; Fore v. McKenzie, 58 Ala. 115 ; Burkett v. Munford, at the present term.

In the absence of these equities, a defendant is not permitted to hold possession under the faith of his purchase, and defend against the enforcement of a vendor’s lien for the purchase-money.—2 Brick. Dig. 512, §§ 83, et seq.

The appellant was clearly estopped from setting up adversely to the appellee, who was his vendor, the title which «he acquired at the administrator’s sale made by Knox Lee, under the order of the Probate Court. He was in possession of the lands under the purchase from appellant; and the irresistible inference from the entire testimony and all the facts of the case is, that this purchase was made, by agreement of parties, merely for the purpose of perfecting the title. The land was worth about two thousand dollars, and the amount paid by Munford for the title obtained at the administrator’s sale wasonly the nominal sum. of twenty-two dollars. It does not appear that he ever thought of referring his possession to this title, until the institution of this present suit. He is precluded, under this state of facts, from disputing the title of his vendor from whom his possession was acquired.—Bliss v. Smith, 1 Ala. 273; Helvenstein v. Higgason, 35 Ala. 259.

There was no necessity to make either the administrator of Augustus Pearce, or his-heirs at law, parties to thjs suit, under the peculiar f'acts of the case.' The bill itself does not show that any one had any interest in' the lands described, except such as the appellee was authorized to sell and convey by authority of a special act of the legislature.—Acts 1872-3, p. 154. The bond for title, under which Munford took possession, and made the pitrchase, recognizes the authority of the appellee to sell and convey, and, by necessary implication, to receive the purchase-money, by virtue of the power conferred by this special act. Tlie proof, furthermore, shows that the title of the heirs was devested by the sale made by Knox Lee, under the order of the Probate Court.

The rower of the legislature to pass acts of this nature, authorizing a sale or disposition of property belonging to minors, for their benefit, may be now considered so firmly settled as to constitute a rule of property in this State. It can, therefore, no longer be questioned, at least, in those instances where the act was passed prior to the present constitution, of 1875. Iiow the case might be under the influence of section 23, of article!, of this constitution, inhibiting the General Assembly from passing speeded laws, for the benefit of individuals, in certain contingencies we need not now decide.—Tindal v. Drake, 60 Ala. 170-178; Todd v. Flournoy, 56 Ala. 99.

The decree of the chancellor must be affirmed.