Burroughs v. Pate

• Decision Date: 23 November 1909
• Parties: BURROUGHS v. PATE.
• Court: Alabama Supreme Court

51 So. 978

166 Ala. 223

BURROUGHS v. PATE.

Supreme Court of Alabama

November 23, 1909

Rehearing Denied Feb. 26, 1910.

Appeal from Law and Equity Court, Tuscaloosa County; H. B. Foster Judge.

Action by J. M. Burroughs against T. J. Pate. Judgment for defendant, and plaintiff appeals. Reversed and remanded.

The breach declared on is for quiet and peaceable possession when in fact the premises were not in the quiet and peaceable possession of the defendant, but were in the possession of one S. J. Johnson, who occupied and now occupies the same under a right of possession paramount and superior to that of the defendant. The second breach declared on was warranty of title, which was breached in that at the time the deed was made the said defendant did not have title to said property but, on the contrary, there was a paramount outstanding leasehold interest therein for a number of years in one S. J Johnson, who holds the said property under the said right or lease, and refuses to permit or allow the plaintiff to enter into possession thereof. The third breach complained of is that the defendant warranted that he was seised of the indefeasible title in estate to said land, when in fact the premises aforesaid were not free from incumbrance at the time of making said deed; but, on the contrary, plaintiff avers that at said time one S. J. Johnson had the paramount and lawful right and title to said premises under and by virtue of a lease executed by the said defendant to the said S. J Johnson on, to wit, the 4th day of January, 1907, for a term of five years therefrom. It is further alleged that the said Johnson has declined and refused to allow the plaintiff to enter into possession of his said property, or has ousted or evicted the plaintiff from said premises, although the plaintiff had made lawful demand therefor.

Pleas 4 and 6 were as follows: (4) "That the defendant was the grantor of the said deed of conveyance mentioned in said complaint, and that while the said deed of conveyance recites a money consideration of $1,500, for which defendant bargained and sold to the plaintiff a certain tract of land correctly set out in said complaint, yet as a matter of fact said deed of conveyance does not set out in words and figures a true recital of the real consideration flowing from the defendant to the plaintiff, but defendant avers that said real consideration was as follows: That at the time of the execution of said deed of conveyance there was a lease of said tract of land to one S. J. Johnson for a term of five years, one year of which had about expired, of which fact the plaintiff was well informed at the time of the said bargain and sale of the said tract of land; that defendant agreed to convey said tract of land to the plaintiff for a consideration of $1,200, and transfer the said lease to said tract of land to the plaintiff for an additional consideration of $300, the purchase price of said lease, provided defendant should be allowed to collect and retain the first payment due under said lease or rent contract; and defendant avers that plaintiff accepted such proposition, and that he has transferred and delivered said lease to plaintiff, and that plaintiff has accepted the same; and defendant avers that the said tract of land and the transferring the lease on the said tract of land was the real consideration flowing from the defendant to the plaintiff. Wherefore defendant says he has not breached his warranty in said deed." (6) "Defendant says plaintiff ought not to recover in said action, because at the time defendant sold and conveyed to plaintiff the premises therein described the plaintiff was fully informed and well aware of the existence of the possession, right, or leasehold interest in said Johnson as alleged in his complaint, and bought said land subject thereto; it being agreed between the plaintiff and defendant as a part of their trade, and as part of the consideration thereof, that said Johnson was to retain possession of the said premises during the remainder of the term of the lease contract with the defendant, and that said Johnson was to convey to the defendant the amount of money due on his first payment under said contract, and was to pay to the plaintiff the amount of money due on his remaining payment under his aid contract."

The demurrers to plea 4 were that it presented immaterial issues and illegal issues, in that it undertook to set up an agreement different and variant from that set up in the deed; in that it undertakes to set up an oral agreement between the parties to the contract, or vary the express terms of the title to the deed. The same grounds were assigned to plea 6.

Daniel Collier and R. H....