McCall v. Morgan

• Decision Date: 24 June 1943
• Docket Number: 4 Div. 273.
• Citation: 14 So.2d 374,244 Ala. 472
• Parties: McCALL v. MORGAN et al.
• Court: Alabama Supreme Court

14 So.2d 374

244 Ala. 472

McCALL v. MORGAN et al.

4 Div. 273.

Supreme Court of Alabama

June 24, 1943

J W. Hicks, of Enterprise, and P. B. Traweek, of Elba, for appellant.

Yarbrough & Beck, of Enterprise, for appellees.

BOULDIN Justice.

This case presents for decision the conflicting claims of vendor and purchaser of real estate to rents, payable by the tenant under rental contract with the vendor, and maturing subsequent to the conveyance of the property to the purchaser. The deed, of date February 5, 1941, conveyed to the purchaser a present title in fee with full covenant of seizin, freedom from encumbrance, and warranty of title. There was no reservation of rents in the deed. The tenant had held over from the previous year with a verbal understanding he should have a preferred option to purchase the property.

Pending negotiations between the vendor and purchaser, the right of the tenant to purchase or to rent the lands for 1941 on a money rent basis of $250 was made known to the purchaser, and the consummation of the deal held up to await the plans of the tenant. The tenant deciding to rent and not to purchase the vendor took his rent note for $250, dated January 31 1931, payable to the vendor October 15, 1941. The vendor retained the note.

Both vendor and purchaser claiming the rent at maturity led to filing a bill of interpleader by the purchaser, claiming the rent passed to him under his deed.

The vendor, by answer, claimed the rent was reserved. By separate pleading setting up her claim she alleged: "Respondent avers that prior to the 5th day of February, 1941, she rented the land described in the original bill of complaint to Henry Bradley for the sum of $250.00 and that the said Henry Bradley executed to her a rent note for said sum of money, that as a part of the consideration for the deed to said premises executed by respondent to L. B. McCall the rent in the amount of $250.00 was reserved to her. That the said L. B. McCall well knew that the rents for the year 1941 were reserved by the respondent as a part of the consideration for said deed, and that the first time the said L. B. McCall made any claim to said rents was some time in July, 1941."

The evidence, taken before a commissioner, subject to all legal objections, is in sharp conflict touching the agreed purchase price for the lands. The version of the vendor is that the price agreed upon was $2,500; that the cash payment of $1,100, the assumption of an outstanding mortgage of $1,100.29, and payment of the taxes of 1941, all recited in the deed, represented $2,250 of the agreed price, and it was agreed that she should receive the rents in satisfaction of the balance, $250; all this prior to or contemporaneous with the deed.

The theory of the purchaser is that the agreed price was $2,250, fully represented by the items mentioned in the deed; that he knew nothing of the rent note at the time the deed was executed, that it was not reserved, and in fact there was no balance of $250 purchase money to be satisfied by the rent.

A deed of conveyance passing a present title in fee simple carries the right of immediate possession, use, and enjoyment. In the absence of a reservation in the deed it passes title to rents thereafter accruing under an existing rental contract between the vendor and his tenant in possession. The rent is incident to the estate granted, may be recovered from the tenant without attornment; the law raises a privity between purchaser and tenant, or, as sometimes stated, the covenant to pay rent runs with the land.

Parol evidence of a reservation of rent by the vendor is inadmissible. This for the reason that such evidence contradicts and varies the legal effect of the deed; it diminishes the estate granted; reduces it from the present grant of a fee with all its incidents to an estate to be enjoyed in futuro, or, otherwise stated, retains in the vendor a present interest, the usufruct of the property pending the tenancy. Burroughs v. Pate, 166 Ala. 223, 51 So. 978; Able v. Gunter, 174 Ala. 389, 57 So. 464; Ingram v. Roberts, Euther & Co., 224 Ala. 314, 140 So. 369; Greenwood v. Bennett, 208 Ala. 680, 95 So. 159; Wise v. Falkner, 51 Ala. 359; 32 C.J.S., Evidence, § 956, pp. 887, 889, 890; 16 Am.Jur. p. 686; 32 Am.Jur. p. 360; 66 C.J. 1040.

Our cases of Burroughs v. Pate and Able v. Gunter, supra, are clear to the effect that, while, in general, the consideration for a conveyance of land is subject to parol evidence of a further valuable consideration than that recited in the deed, this rule does not open to parol proof a reservation of rents as part consideration. This for the reason, as above indicated, such proof is in conflict with the legal effect of the deed. Such a rule would open the door to parol reservation of rents in all cases. Accurately speaking, from a legal standpoint, an express reservation of rents in the deed cannot be regarded as part payment of...