Boylan v. Wilson

• Citation: 202 Ala. 26,79 So. 364
• Decision Date: 06 June 1918
• Docket Number: 3 Div. 353
• Parties: BOYLAN et al. v. WILSON.
• Court: Supreme Court of Alabama

79 So. 364

202 Ala. 26

BOYLAN et al. v. WILSON.

3 Div. 353

Supreme Court of Alabama

June 6, 1918

Appeal from Circuit Court, Montgomery County; Gaston Gunter, Judge.

Suit by Theobald Boylan and others against Albert F. Wilson. From decree for defendant, complainants appeal. Affirmed.

Hugh Nelson, of Montgomery, for appellants.

Wm. F Thetford, Jr., of Montgomery, for appellee.

McCLELLAN J.

From a decree sustaining appellee's demurrers to the appellants' bill as last amended, the appeal is prosecuted. The complainants (appellants) seek the specific performance of a written contract for the sale and purchase of real estate, two lots in the city of Montgomery. The bill recites that the lots belonged in 1906 to T.J. Toole; that he mortgaged them to Miss Carr in 1906; that in June, 1909, this mortgage was foreclosed under the power of sale, complainants becoming the purchasers of the lots and receiving a deed thereto; and that on July 13, 1916, the defendant (appellee) and complainants executed an agreement whereby complainants engaged to sell and defendant engaged to buy two of the lots sold at the foreclosure sale, the writing stipulating, among other things, for an abstract of title and for a "good title." In the mortgage to Miss Carr and in the conveyance to the complainants (purchasers at the foreclosure sale) the description was as follows:

"Lots one (1) two (2) nine (9) and ten (10) according to Whitman's plat recorded in the office of the judge of probate of Montgomery county, said lots 1 and 2 fronting 50 feet each on Jefferson street and lots 9 and 10 fronting 50 feet each on Madison avenue the said 4 lots together running all the way through the block from Madison avenue to Jefferson street."

In the contract between defendant and complainants the description of the subject-matter was as follows: "9 and 10 on north side of Madison avenue according to the Pittman plat."

The report of the appeal will contain the contract executed by the parties.

It appears from the bill that the plat referred to in the mortgage and in the deed to complainants was the "Whitman plat"; whereas, in the contract the reference is to the "Pittman plat." It is averred in the bill that this defect is immaterial; that it is a well-known fact, easily established, that there is no property on Madison avenue and Jefferson street in the city of Montgomery embraced in the Whitman plat, but said lots on Madison avenue and Jefferson street are included in the Pittman plat; that Toole owned the lots on Madison avenue and Jefferson street at the time the mortgage was executed, and after the purchase at the foreclosure sale the purchasers went into possession of said lots on Madison avenue and Jefferson street in the Pittman plat, and that the complainants have continued in the possession of the said premises, receiving the rents therefrom without interference by Toole or any one in his behalf; that at the time said agreement was executed by complainants and defendant defendant was thoroughly acquainted with the property and with complainants' possession of the same, and knew that the property was formerly owned by Toole; and that the said agreement and the deed therein mentioned were drawn up contemporaneously, the deed being drawn by the defendant himself, and was signed and acknowledged in accordance with the agreement between complainants and the defendant. It is further averred in the bill that Toole was adjudged a non compos mentis by the probate court of Montgomery county on January 10, 1910, and a guardian was appointed for him; that at the time Toole had outstanding large mortgage indebtednesses incurred by him, a list thereof being shown in the bill; that all of said mortgages were made by Toole at or about the time said mortgage to Miss Carr was executed, or at a later date; that the title involved in said mortgages was the same title as here in suit; that all of said mortgage titles have been recognized in the court proceedings following the appointment of a guardian for Toole, and provision was made by the court for the payment of the listed mortgage indebtednesses from the proceeds of the sale of other property belonging to Toole, and which payments have been made as directed by the court, either on said mortgage indebtedness or the accrued interest thereon. It is further averred that the mortgage to Miss Carr was a valid and subsisting mortgage at the time of the foreclosure sale, and that the purchasers (complainants) acquired a valid title to the property here in question; that the time for redemption by said Toole or any one in his behalf has long since expired, and no one has a better right or title than complainants have in and to the lots described in the contract.

The particular objection taken by the demurrer was that the appellants' averments disclosed the absence of a good title, a marketable title in the complainants. Unless otherwise qualified, a "good title" means a marketable title, a title "that can be sold to a reasonably prudent man who might desire the property, or a title that can be mortgaged to a person of reasonable prudence." Note to Justice v. Button (Neb.) 38 L.R.A. (N.S.) 1; Fagan v. Hook, 134 Iowa, 381, 105 N.W. 155, 157, 111 N.W. 981, and cases therein cited.

Specific performance is not a matter of absolute right. It rests entirely in judicial discretion, to be exercised according to the settled principles of equity, not arbitrarily or capriciously, yet always with reference to the facts of the particular case. Hennessey v. Woolworth, 128 U.S. 438, 442, 9 Sup.Ct. 109, 32 L.Ed. 500; Wesley v. Eells, 177 U.S. 370, 376, 20 Sup.Ct. 661, 44 L.Ed. 810.

Specific performance will not be compelled if under all the circumstances it would be inequitable to do so. Authorities, supra. A contract for the sale and purchase of land will not be compelled where the state of the title is the subject of reasonable doubt, or where it is reasonable to anticipate that the purchaser (respondent) will be exposed to litigation with respect thereto. Wesley v. Eells, supra, 38 L.R.A. (N.S.) pp. 4-7,...