Lowery v. May

Citation213 Ala. 66,104 So. 5
Decision Date19 March 1925
Docket Number1 Div. 341
PartiesLOWERY v. MAY.
CourtSupreme Court of Alabama

Rehearing Denied April 23, 1925

Appeal from Circuit Court, Mobile County; Saffold Berney, Judge.

Bill in equity by Ben May against H.G. Lowery and George M Rosengrant, for injunction and accounting, and cross-bill by H.G. Lowery. From a decree overruling demurrer to the original bill and sustaining demurrer to the cross-bill respondent (cross-complainant) Lowery appeals. Affirmed in part, in part reversed and remanded.

Harry T. Smith & Caffey, of Mobile, for appellant.

Smiths Young, Leigh & Johnson, of Mobile, for appellee.


The appeal is from the rulings on demurrer of defendant, Lowery, to the bill as amended, and the ruling on complainant's demurrer to the cross-bill of Lowery.

The title to the real property was originally in Milner. The defendants lay their prior rights under him through mesne conveyances or contracts to convey. Thereafter complainant purchased the fee from Milner, sought to enjoin Lowery from removing merchantable timber from certain of said lands made the subject of contract between Milner and Rosengrant. The legal effect and intention of the parties, indicated in the conveyance and contract to convey from Milner to Rosengrant, and by mesne conveyances to Lowery, must be declared before the quantum of estate thereafter conveyed by Milner to May can be determined.

It is necessary that we have clearly in mind the definitions of covenants and conditions ofttimes contained in conveyances or contracts. A covenant is an agreement duly made between the parties to do or not to do a particular act, or whereby either doth promise to the other that something is done already or shall be done afterwards, or a stipulation as to the nonperformance of some specified duty, or stipulation as to the truth of certain facts. It should be further said concerning the conditions and covenants, that these are generally classified as "dependent and concurrent," "mutual and independent." (1) Covenants which are "conditions and dependent" on each other require the prior performance of some act, or existence of the specified status or condition, and until that condition is performed or a given status exists, the other party is not liable to an action on his covenant. Bailey v. White, 3 Ala. 330; Wheeler v. Cleveland, 170 Ala. 426, 433, 54 So. 277; McCormick v. Badham, 191 Ala. 339, 67 So. 609; National Surety Co. v. City of Huntsville, 192 Ala. 82, 68 So. 373; Home Guano Co. v. International Agr. Asso., 204 Ala. 274, 85 So. 713; J.C. Lysle Milling Co. v. North Alabama Gro. Co., 201 Ala. 222, 77 So. 748; Mobile Elec. Co. v. Nelson, 209 Ala. 554, 96 So. 713. (2) Mutual conditions are to be performed at the same time or as agreed upon by the parties. Jones v. Barkley, 2 Dougl. 659, 665; Wheeler v. Cleveland, supra; Lauderdale Power Co. v. Perry, 202 Ala. 394, 80 So. 476; McCormick v. Badham, 191 Ala. 339, 67 So. 609; Bailey v. White, supra; Boone v. Eyre, 1 Henry Blackstone's Rep. 273, note. (3) "Mutual and independent" covenants are such as do not go to the whole consideration on both sides, but only to a part, and where separate actions lie for breaches on either side to recover damages from the other for the injury he may have sustained by a breach of the covenants in his favor, and it is no excuse for a defendant in such action to allege and prove a breach of covenant on the part of the other party. Rives v. Baptiste, 25 Ala. 382, 391; Bailey v. White, 3 Ala. 330; Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975; McCormick v. Badham, 191 Ala. 339, 67 So. 609; Nesbit v. McGehee, 26 Ala. 748; Duke of St. Albans v. Shore, 1 Henry Blackstone's Rep. 270, 273, and note of Boone v. Eyre, 126 Reprint, 160; Jones v. Barkley, 2 Dougl. 659, 665; Ritchie v. Atkinson, 10 East, 295, 298, 305. (4) A "condition subsequent" is created by a conveyance wherein an estate vests on condition, and may thereafter be defeated by the nonperformance of such condition, or where an estate vests on the condition that it may be defeated by the happening of the event stipulated against or the performance of the act or the existence of the condition contracted against, and when the act is done or the event does happen or condition exist, it defeats an estate already vested. S.A.L. Ry. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; Hitt Lbr. Co. v. Cullman C. & C. Co., 200 Ala. 415, 76 So. 347; Birmingham Packing Co. v. Birmingham Belt Ry. Co., 201 Ala. 180, 77 So. 706; Elyton Land Co. v. S. & N.A.R.R. Co,, 100 Ala. 396, 405, 14 So. 207; White v. Saint Guirons, Minor (Ala.) 331, 341, 350, 12 Am.Dec. 56; 4 Kent's Com. 121.

Let up keep in mind the common-law application of the rule or tests applied, and from whence our later definitions come or applications have been made.

The covenant construed in Boone v. Eyre, 1 Henry Blackstone's Rep. 270, 273, 126 Reprint, 160, was contained in a deed where the plaintiff conveyed to defendant a plantation, "together with the stock of negroes upon it," in consideration of 500 pounds and an annuity of 160 pounds per annum for life, covenanted that the vendor had a good title to the plantation and was lawfully possessed of the negroes, and that defendant should quietly enjoy, and the "defendant covenanted that the plaintiff well and truly perform all and everything therein contained on his part to be performed, he the defendant would pay the annuity." The plea which was denied was that plaintiff was not, at the time of making the conveyance, legally possessed of the negroes, and so had no right to convey. Lord Mansfield covered the subject in this classic decision, viz.:

"The distinction is very clear, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. But where they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. If this plea were to be allowed, any one negro not being the property of the plaintiff would bar the action." Boone v. Eyre, 1 Henry Blackstone's Rep. 270, 273.

The test applied by Lord Ellenborough was, that where mutual covenants go to the "whole of the consideration on both sides, they are mutual conditions, the one precedent to the other, but where the covenants go only to a part, then a remedy lies on the covenant to recover damages for the breach of it, but it is not a condition precedent." Ritchie v. Atkinson (1808) 10 East, 295, 306. And this was as announced by Lord Mansfield in Boone v. Eyre, 1 Henry Blackstone's Rep. 273, 6 T.R. 573, and Jones v. Barkley, 2 Dougl. 684. The same test was employed by Lord Kenyon in Campbell v. Jones, 6 T.R. 570, 573.

From these cases came out later decisions on the subject. And it is established in this jurisdiction that the dependence or independence of covenants in contracts and conveyances is created and to be ascertained by and from the evident sense and meaning of the parties, having a due regard to the whole instrument, and that however transposed in the instrument such provisions may be, their precedency must depend on the order of time in which the intent of the transaction requires their performance. The old cases were Bailey v. White, 3 Ala. 330, 332; Rives v. Baptiste, 25 Ala. 382, 391; Nesbitt v. McGehee, 26 Ala. 749. Later applications of the rule are Elyton Land Co. v. S. & N.A.R.R. Co., 100 Ala. 396, 14 So. 207; McCormick v. Badham, 191 Ala. 339, 343, 67 So. 609; Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975. It is further required in the construction of contracts and conveyances that the expressed intent of the parties, if not contrary to law, be given application (Patterson v. A.C.L.R.R. Co., 202 Ala. 583, 591, 81 So. 85) that the several provisions thereof will be so construed as to avoid a conflict, if the language will permit (Bethea v. McCullough, 195 Ala. 480, 70 So. 680; McCormick v. Badham, 191 Ala. 339, 67 So. 609; S.A.L. Ry. Co. v. Anniston Mfg. Co., 186 Ala. 264, 65 So. 187; Vizard v. Robinson, 181 Ala. 349, 61 So. 959; Fulenwider v. Rowan, 136 Ala. 287, 34 So. 975).

When the language used is ambiguous or contradictory, resort is had to certain arbitrary rules of construction, as that a deed of bargain and sale for a valuable consideration is to be construed most strongly against the grantor therein; the granting clause and estate conveyed is upon the terms set out, and is limited thereby (Slaughter v. Hall, 201 Ala. 212, 77 So. 738; Stanley v. Daniel, 209 Ala. 588, 96 So. 783; Porter v. Henderson, 203 Ala. 312, 317, 82 So. 668; Allumns' Case, 208 Ala. 369, 94 So. 296; Vizard v. Robinson, 161 Ala. 349, 61 So. 959; Cobbs v. U.N.S. Co., 202 Ala. 333, 80 So. 415); inconsistency between clauses or conditions which cannot be reconciled must be resolved in favor of the first clause, that is, if upon the whole instrument consistent effect cannot be given to the subsequent clause. If there be apparent conflict between the granting and habendum clauses of deeds, the rule of construction is to harmonize, if possible, with the consistent and expressed intent of the parties; if this cannot be done, the first and granting clause will control. Porter v. Henderson, supra; Wallace v. Hodges, 160 Ala. 276, 49 So. 312; Ex parte Beavers, 34 Ala. 71; Petty v. Boothe, 19 Ala. 633. The habendum or covenants following cannot enlarge the estate granted in the premises of the deed; if there is a question of the "extent of the ownership" in the estate granted, resort may be had to these clauses for the purposes of construction. Porter v. Henderson, 203 Ala. 312, 82 So. 668; De Goosh v. Baldwin & Russ, 85 Vt. 312, 82 A. 182.

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