Hawkins v. Merritt

• Decision Date: 05 February 1896
• Citation: 109 Ala. 261,19 So. 589
• Parties: HAWKINS v. MERRITT.
• Court: Alabama Supreme Court

19 So. 589

109 Ala. 261

HAWKINS v. MERRITT.

Supreme Court of Alabama

February 5, 1896

Appeal from circuit court, Montgomery county; John R. Tyson, Judge.

Action by V. T. Hawkins against F. H. Merritt, executor, for damages for breach of a contract to convey. There was a judgment for defendant, and plaintiff appeals. Reversed.

This suit was brought by the appellant, V. T. Hawkins, against the appellee, F. H. Merritt, as executor of F. M. Gilmer deceased, to recover damages for the breach of a written contract by the defendant's testator, in which contract the said Gilmer agreed to convey certain lands on payment to him in full of the purchase-money notes given at the time of the purchase. The complaint set out the contract in full, and then continues: "And plaintiff says that, immediately after the execution of said agreement by the said F. M Gilmer and himself, the said Gilmer put him in the possession of said lands under said contract, and that he cultivated the same, making valuable improvements thereon; that he fully complied with the terms of said agreement, and paid to the said Gilmer the notes falling due in the month of October of the years 1890 and 1891, respectively; that on June 6, 1892 which was prior to the time of maturity of said third note said lands were advertised for sale by J. F. Leary and M. B. Houghton, as transferees of a certain mortgage executed by said F. M. Gilmer and wife. Caroline M., conveying said lands to the State Bank (said mortgage having been executed prior to January 25, 1890, the date of said agreement between F. M. Gilmer and plaintiff), and were sold on the 1st day of July, 1892, said J. F. Leary and M. B. Houghton becoming the purchasers thereof; that said Leary and Houghton, as such purchasers, did on or about, to wit, the 15th day of July, 1892, demand possession of said lands from plaintiff, and evicted him from the occupation of same; that plaintiff had, prior to the time of such ouster as aforesaid, fully complied with all the terms of said agreement, and was still willing to comply with the same when he was dispossessed of said lands; that defendant, as the personal representative of said Gilmer, has been repeatedly requested by plaintiff to fulfill the terms of said agreement, but has failed to do so. Therefore plaintiff says that, by reason of defendant's failure to comply with the terms of said agreement as aforesaid, he has sustained damages in the sum mentioned. And plaintiff further avers that he expended a large sum, to wit, six hundred dollars ($600), in ditching, fencing, and making other permanent and valuable improvements on said land, while he was in the possession thereof under said contract, and prior to the time he was evicted by said Leary and Houghton as aforesaid, thereby greatly enhancing the value of said land, and although he has made repeated requests of defendants, as the personal representative of said Gilmer, to refund said money, he refuses to do so." To this complaint the defendant demurred on the following grounds: "(1) That the complaint does not aver or show any breach of a contract sued on, on the part of this defendant or his testator, the said F. M. Gilmer. (2) That the complaint is founded upon a written contract set out in the declaration, claiming a breach thereof by this defendant, when, by the terms of said contract, defendant's testator, or this defendant as his executor, was not required to 'make good and warranted titles to the said lands' mentioned in said written contract until and after the payment in full of the notes shown in said contract to have been given by plaintiff; and said complaint does not aver or show the performance of the terms of said contract by the plaintiff, or any breach thereof by said F. M. Gilmer or this defendant." This ...