Haggerty v. Elyton Land Co.

• Decision Date: 29 April 1890
• Parties: HAGGERTY v. ELYTON LAND CO.
• Court: Alabama Supreme Court

7 So. 651

89 Ala. 428

HAGGERTY v. ELYTON LAND CO.

Supreme Court of Alabama

April 29, 1890

Appeal from chancery court, Jefferson county; THOMAS COBBS Chancellor.

The bill in this case was filed on the 27th day of May, 1889, by James Haggerty and his sister, Mrs. Nancy McNeelis, brother and sister of Mike Haggerty, deceased, as his sole heirs at law, against the Elyton Land Company, and sought the specific performance of a contract between the defendant and said decedent for the sale to the latter of a lot in the city of Birmingham, on 13th February, 1872, on terms specified in the bond for titles executed by the defendant. The chancellor sustained a demurrer to the bill on the following grounds (1) That the erection of improvements on said lot by Mike Haggerty, as specified in the bond for title, was a condition precedent to any right on his part to a conveyance; (2) that complainants' demand is stale; (3) that their right is barred by the statute of limitations; (4) that they have been guilty of laches. The chancellor's decree is appealed from, and is here assigned as error.

Semple & Little and Lea & Greene, for appellant.

CLOPTON J.

The appeal is taken from a decree sustaining a demurrer to the bill, which is brought by appellants, as the heirs at law of Mike Haggerty, deceased, for the specific execution of a contract of sale, made February 13, 1872, by which the defendant, the Elyton Land Company, sold to decedent lot numbered 8, in block 60, in the city of Birmingham. The bond which the company gave Haggerty, and which is the only evidence of the contract, recites as the consideration the sum of $175, and the agreement on the part of Haggerty "that he will erect, or cause to be erected, upon the lot or parcel of land hereinafter described, and by or before the 13th day of August, 1873, improvements of not less value than $800." The condition of the bond is as follows: "Now, if, upon the erection and completion of improvements as herein stipulated, the said Elyton Land Company causes to be made or makes to the said Haggerty, his heirs and assigns, a good and sufficient title, with covenants of seizin and warranty, to the aforesaid lot or parcel of land, and containing the reservations and conditions hereinafter stipulated, then this obligation to be void; otherwise, to remain in full force and effect. The erection and completion of the aforesaid improvements being the principal consideration and inducement for the sale aforesaid, it is expressly understood that, if the said improvements are not erected as herein stipulated, then and in that event said Haggerty is to forfeit all money or moneys paid upon said lot, and also all right and claims upon materials furnished or work done for or upon said improvements, and said lot and improvements and materials shall become the property of the said Elyton Land Company, and this bond shall be null and void."

Few are the classes of cases in which a court of equity as emphatically insists upon the maxim that he who seeks equity must do equity as in cases of the specific performance of contracts. The party who seeks the specific execution of a contract is bound to show a substantial performance, or readiness and offer to perform, on his part, all that is required of him by the contract. Failure in any material respect furnishes a full defense to the suit. This principle is applicable to a contract for the sale of land, by which the vendee can become entitled to a conveyance only on the erection and completion of certain improvements thereon. When the stipulation is of such character as to constitute a condition precedent, the court has no power to vary the terms of the contract, if fairly entered into, nor, unless under special circumstances, relieve against the consequences of its non-performance. Unless the vendee substantially performs the condition, so as to entitle himself to a conveyance of the legal estate, his equitable interest in the property does not become perfect, or such as will be enforced. Rives v. Toulmin, 25 Ala. 452; Whiting v. Gould, 2 Wis. 404; Wells v. Smith, 7 Paige, 22.

Complainants' counsel contend that the agreement to erect and complete the improvements is a covenant, constituting part of the consideration for which the vendor contracted, and that having received the pecuniary part of the consideration and the agreement, the entire consideration has been paid; and the vendee, having taken immediate possession, the performance of the condition is subsequent to the vesting of an estate or interest, on the waiver of which, complainants' right to a conveyance arises. In support of this contention, the case of McDonald v. Land Co., 78 Ala. 382, is cited. In that case, the bond for title was substantially the same as the present, in form and substance. The bill was filed to enforce a vendor's lien for the damages resulting from the breach of the agreement to erect improvements. We held that the agreement, constituting the consideration other than the amount agreed to be paid in money, if the vendee was sui juris, must be regarded as taken as payment, with the legal right to damages on breach; and that the same rule obtains when the vendee is not sui juris,-as, in that case, a married woman,-and not responsible personally. In order not to be misunderstood, we said: "As the complainant took the agreement as part consideration, with a legal right of action to recover possession, although having none for damages and with the defensive protection against specific performance, it must be regarded as payment pro tanto;" clearly intimating that, though the agreement did not form a foundation for a vendor's lien, it would be available as a defense, if the vendee sought specific performance. No set phrases or precise words are requisite to make a condition precedent or subsequent. Whether the one or the other must...