McKenzie v. Sutton

• Decision Date: 16 April 1948
• Docket Number: 1 Div. 303.
• Citation: 34 So.2d 825,250 Ala. 447
• Parties: McKENZIE et al. v. SUTTON.
• Court: Alabama Supreme Court

34 So.2d 825

250 Ala. 447

McKENZIE et al. v. SUTTON.

1 Div. 303.

Supreme Court of Alabama

April 16, 1948

Vickers, Leigh & Thornton, of Mobile, for appellants.

Jere Austill, of Mobile, for appellee.

LAWSON Justice:

On February 2, 1946, C. W. McKenzie and his wife, A. M McKenzie, appellants, and A. C. Sutton appellee, entered into an executory contract for the sale of a lot situated in the city of Mobile. The agreement reads as follows:

'February 2, 1946

'C W. McKenzie

'1151 Rotterdam Street

'Mobile Aladama

'I make you a firm offer of Eleven hundred fifty and no/100 ($1150.00) Dollars cash, for your lot on the Northeast corner of Dublin and Houston Streets in the City of Mobile, Alabama.

'It is understood that you are to deliver a clear title to me free from any paving debts and all taxes and convey the lot to me by warranty deed.

'I give you herewith Twenty-five and no/100 ($25.00) Dollars as earnest money to bind this trade which is to be considered as part of the purchase price when the trade is closed or returned to me if your title is found not merchantable.

'Please indicate below your acceptance of this offer so that I can have Mr. Austill proceed at once to examine your title and draw the papers.

'Yours very truly,

'/s/ A. C. Sutton

'We accept the above offer and are ready to close when your attorney finds the title satisfactory.

'/s/ C. W. McKenzie

'/t/ C. W. McKenzie

'/s/ A. M. McKenzie'

At the time this agreement was entered into all parties thereto were ignorant of any existing defect in the title of the McKenzies to the lot in question. The McKenzies claimed under a warranty deed from one Emma P. Baugh, which was executed in November, 1922, and for which they paid the sum of $750.

When Hon. Jere Austill, an attorney, who appears to have represented Sutton throughout this transaction, examined the title to the lot he found that the said Emma P. Baugh in June, 1917, had executed a warranty deed conveying this same lot to Thomas and Mary Bell McKenzie for a recited consideration of $325. Thomas and Mary Bell McKenzie were the father and mother of the appellant C. W. McKenzie. Austill wrote his client, Sutton, of the existence of this latter deed, sending a copy of the letter to the McKenzies. A. M. McKenzie, the wife, then conferred with Mr. Austill and advised him that she and her husband could not go through with the transaction inasmuch as the contract called for a warranty deed conveying merchantable title and that they could not execute such conveyance in view of the deed from Emma P. Baugh to Thomas and Mary Bell McKenzie, the existence of which they were unaware at the time they entered into the agreement with Sutton. It does not appear with certainty when Thomas and Mary Bell McKenzie first occupied a house which was located on the lot in question. But it does appear that they were living in that house in 1919 together with their children, other than the appellant C. W. McKenzie Thomas McKenzie died in 1919. Mary Bell McKenzie and the three children remained in this house and were living therein when the appellants, C. W. and A. M. McKenzie, secured their deed from Emma P. Baugh in 1922. The appellants, since securing their deed from the said Emma P. Baugh, have assessed and paid taxes on the property in question and have paid public improvement assessments. Mary Bell McKenzie and the children continued to live in this house without paying any rent to C. W. McKenzie or his wife, A. M. McKenzie, until 1929, when the house was torn down. Mary Bell McKenzie died in 1932 and the whereabouts of her children, other than the appellant C. W. McKenzie, is unknown. Since the house was torn down in 1929 the lot has remained vacant. It has not been occupied or used by the appellants or by anyone else. According to the testimony of the appellants, prior to becoming apprised of the deed from Emma P. Baugh to Thomas and Mary Bell McKenzie, they had never considered that anyone else had any claim, title, or interest in the lot in question and no one had ever questioned their title thereto.

After Mr. Austill had his first conversation with the appellant A. M. McKenzie, he again contacted his client, Sutton. Sutton then advised him that if he, Austill, considered the title satisfactory that he, Sutton, was ready to go through with the transaction and forwarded to Mr. Austill the sum of $1125 with which to close the trade. Twenty-five dollars had previously been paid to the appellants as earnest money. However, they later returned the $25 after learning of the deed from Emma P. Baugh to Thomas and Mary Bell McKenzie.

On March 4, 1946, Mr. Austill, representing Sutton, wrote the appellant C. W. McKenzie advising him that Sutton had placed in his hands the money with which to complete the transaction and requested that the appellants have a deed prepared. Again A. M. McKenzie contacted Mr. Austill, stating that she was reluctant to sign a warranty deed. Austill testified that he then told her, 'I will be willing to take a statutory warranty deed,' but she refused to execute such a deed.

After such refusal this suit was filed on March 30, 1946. It is a bill for specific performance and the prayer of the bill as amended is as follows:

'Complainant prays that upon consideration of the premises that this Honorable Court will be pleased to enter its decree directing the respondents to execute and deliver to the complainant a conveyance of said real property as contemplated by the contract of February 2, 1946, upon payment of the balance of the consideration, viz.: the sum of Eleven hundred twenty-five and no/100 ($1125.00) Dollars, and should the respondents fail or refuse to do so that this Honorable Court will be pleased to permit the complainant to pay said balance of the consideration into the treasury of this Court and the Court will thereupon execute a conveyance to the complainant of all right, title and interest of the respondents therein and thereto; * * * that the respondents be required to pay all costs herein incurred and for such other, further or different relief as the complainant might be entitled to in the premises.'

The defendants, in their answer, admit the execution of the contract as set out in the amended bill and admit that they refused to execute a deed to the property. They attempt to justify their refusal on the ground that they were under no obligation to convey under the terms of the contract unless they had a merchantable title and that they did not have such title in view of the deed from Emma P. Baugh to Thomas and Mary Bell McKenzie.

The decree of the trial court as here pertinent is as follows:

'Now therefore it is considered, ordered, adjudged and decreed by the court, that the said Allen C. Sutton, the complainant in this cause, shall and he hereby is directed to pay into the registry of this Court, the sum of One thousand one hundred fifty and no/100 ($1,150.00) Dollars as the consideration for said real property which the respondents agreed to accept therefor;

'And it is further considered, ordered, adjudged and decreed by the Court that the said C. W. McKenzie and A. M. McKenzie, the respondents in this cause, shall and they are hereby directed to convey the real property described in the bill of complaint to the complainant, Allen C. Sutton, within thirty (30) days from the date hereof and to deliver said conveyance, executed with proper legal formality and with the proper United States internal revenue stamps affixed thereon and containing covenants of warranty against any encumbrance done or suffered by them upon or against the title to said land, to the Register of this Court within thirty (30) days from the date hereof; * * *

'And it is further considered, ordered, adjudged and decreed by the Court that upon the failure of said respondents to make and deliver said conveyance as herein ordered within thirty (30) days from the date hereof, that the Register of this Court shall thereupon make, execute and deliver to the complainant a conveyance of all the right, title and interest of the respondents in and to said real property to the said Allen C. Sutton, and upon the delivery of said conveyance all right, title, interest, claim and demand of the respondents in and to said real property shall be divested out of them and invested in the said Allen C. Sutton; * * *.'

Appellants contend that the language of this contract is to be construed as if it had included therein language which is often found in contracts of this kind to the effect that the contract is void and earnest money to be refunded in the event title of the vendor is found not to be merchantable.

It is further contended by appellants that when such a provision is incorporated into an executory contract for the sale of land and the title is found to be not merchantable without fault on the part of the vendor, the vendee cannot compel the vendor to convey such interest as he has in the property, inasmuch as the court cannot rewrite a contract. Reliance is had upon a number of out-of-state cases, including Old Colony Trusts Co. v. Chauncey, 214 Mass, 271, 101 N.E. 423; Barker v. Critzer, 35 Kan. 459, 11 P. 382; Boehmer v. Wellensiek, 107 Neb 478, 186 N.W. 326; Edwards Lumber & Land Co. v. Smith, 191 N.C. 619, 132 S.E. 593; Safron v. McBurney & Son, 269 Pa. 392, 112 A. 677. These cases just cited are in most instances authority for the position insisted upon by appellants. These cases were considered by this court in the case of Mitchell v. White, 244 Ala. 603, 14 So.2d 687, where they were distinguished from the case there under consideration. Although distinguished and therefore considered not controlling, appellants insist that the treatment of those cases in Mitchell...