Borst v. Simpson

• Decision Date: 20 May 1890
• Citation: 7 So. 814,90 Ala. 373
• Parties: BORST ET AL. v. SIMPSON ET UX.
• Court: Alabama Supreme Court

7 So. 814

90 Ala. 373

BORST ET AL. v. SIMPSON ET UX.

Supreme Court of Alabama

May 20, 1890

Appeal from chancery court, Lauderdale county; THOMAS COBB Chancellor.

J B. Moore and B. M. Jackson, for appellants.

Simpson & Jones, for appellee.

CLOPTON J.

The appeal is taken from a decree overruling a demurrer to the bill, by which appellee seeks to obtain the delivery and cancellation of a conveyance of lands made by herself and husband to appellants November 15, 1888. The language of the deed is: "For and in consideration of the sum of one dollar cash in hand paid, the receipt whereof is hereby acknowledged, we, R. T. Simpson and Mattie C. Simpson, of Lauderdale county, Ala., have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto J. W. Borst and S. J. Graham the following lands in Lauderdale county, Alabama [describing them,] to have and to hold unto [them,] their heirs and assigns, forever, upon the following conditions, only, to-wit: The estate herein conveyed shall not vest in said [parties, their] heirs or assigns, until and unless he or they shall, on or before the 1st day of May, 1889, pay to said R. T. Simpson and M. C. Simpson $20,925, or shall, on or before the 1st day of January, 1889, pay to R. T. Simpson and M. C. Simpson the sum of twenty thousand dollars. *** Upon the happening of which condition the estate herein conveyed shall become absolute. But, if such money shall not be paid on or before said dates, then this instrument to become null and void, and all rights thereunder shall cease and determine." By the express terms of the deed, the condition of payment is a condition precedent to vesting the estate, and time is made an essential part of the contract. Language could not be more explicit. No estate did or could pass or vest unless there was performance on one or the other of the days named. Tennessee C. R. Co. v. East Alabama Ry. Co., 73 Ala. 426.

The bill was filed in June, 1889. It avers that defendants have not paid or tendered any money, and have made no offer to take the property according to the terms of the instrument. Defendants contend that the averments of the bill show that performance by them was prevented by the act of complainant in repudiating the contract and revoking the instrument. It appears from the bill that complainant and her husband notified the defendants in writing, March 15, 1889 that they revoked the option given by the instrument, and withdrew all propositions therein contained. A waiver of the necessity of performance of a condition precedent in contracts is implied when the party entitled to performance prevents the fulfillment of the condition, or absolutely refuses performance. "But a mere assertion that the party will be unable or will refuse to perform his contract is not sufficient. It must be a distinct and unequivocal absolute refusal to perform the promise, and must be treated and acted upon as such by the party to whom the promise was made; for if he afterwards continue to urge or demand compliance with the contract, it is plain that he does not understand it to be at an end." 2 Benj. Sales, § 860. The notice was not an absolute refusal, though it may be implied that complainant would refuse to receive payment if tendered. It disclosed on its face that complainant regarded the instrument as reserving to defendants a mere option to buy. The revocation, if unauthorized, could not have affected the validity of the conveyance, or have impaired any rights of the grantees. By fulfilling the condition the estate would have vested,...