Cummings v. Alexander

• Decision Date: 30 June 1936
• Docket Number: 2 Div. 85
• Parties: CUMMINGS v. ALEXANDER et al.
• Court: Alabama Supreme Court

169 So. 310

233 Ala. 10

CUMMINGS v. ALEXANDER et al.

2 Div. 85

Supreme Court of Alabama

June 30, 1936

Appeal from Circuit Court, Perry County; John Miller, Judge.

Action for damages for breach of contract by Ella Bonner Alexander and Lila Mae Stroud, as executrixes of the will of William Burford Alexander, deceased, against W.N. Cummings. From a judgment for plaintiffs, defendant appeals. Transferred from Court of Appeals.

Reversed and remanded.

A.W Stewart, of Marion, for appellant.

Keeton Arnett, of Selma, for appellees.

BOULDIN Justice.

A mortgagor of real estate sold and conveyed a portion of the mortgaged premises, all excepting one described eighty acres which was retained.

The purchaser, as part consideration, assumed the payment of the entire mortgage debt, according to the terms of the mortgage. By separate written instrument, but contemporaneous with and part of the same transaction, the purchaser covenanted or obligated himself, within five years from date, to have this 80 acres released from the mortgage and "not to allow said mortgage to be foreclosed or the title of W.B. Alexander (the mortgagor) in said lands foreclosed for the payment of said mortgage or the debt thereby secured."

Thereafter W.B. Alexander died, testate, leaving a surviving widow, Ella B. Alexander, and Lila Mae Stroud, sole heir at law, who were named executrixes of the will. The will was duly probated and letters testamentary issued to them.

Thereafter by regular proceedings in the probate court, this 80-acre tract, the only real estate owned by decedent at the time of his death, and less in area and value than the homestead allowed to the widow, was duly set apart to the widow in lieu of the homestead under Code, § 7919, and the title decreed to be vested in her absolutely.

Thereafter Cummings, the purchaser aforesaid, breached his contract to pay off the mortgage according to its terms, and to protect the title to this 80 acres against foreclosure. Thereupon, the mortgage was foreclosed by the holder thereof, and this 80 acres lost to the widow.

The present suit was brought to recover damages for the breach of the contract or covenant aforesaid. The complaint sufficiently sets out the cause of action in substance and effect. Demurrers challenging the complaint on that point were overruled without error.

The action was brought in the name of the executrixes. By certain pleas the defendant challenged the right of the executrixes to bring the action. The trial court sustained demurrers thereto, and permitted the suit to proceed to judgment on behalf of the executrixes. The appeal presents for review this question: Was the covenant to protect the title to this land against the outstanding mortgage a personal covenant running to decedent, or was it a covenant running with the land, the right of action being in the widow, Ella B. Alexander, the owner at the time of the breach?

Appellees rely upon the principle of law thus stated in Deason v. Findley et al., 145 Ala. 407, 408, 40 So. 220: "It is not sufficient that the covenant is concerning land, but to make it run with the land there must be a privity of estate between the covenanting parties, and the covenant must have relation to an interest created or conveyed, in order that the covenant may pass to the grantee of the covenantee. 8 Am. & Eng.Ency.Law, 147; Web v. Russell, (England) 3 T.R. 393."

The law of Alabama...