Taylor v. Newton , 152 Ala. 459 ( 1907 )

ANDERSON, J.-

Conceding that the paper or option given Adams by the respondent Newton was unilateral, and that he (Newton) had the right to withdraw the offer at any time before acceptance, if it was accepted within the time specified and before the offer was withdrawn, it became a complete contract, as Newton, in accepting the $100, became bound thereby, and could not then withdraw without the consent of the complainant. A contract thus made, the other conditions existing, is a proper subject of specific performance in a court of equity. — Wilks v. Ga. Pac. R. R., 79 Ala. 180. It may be that the option was not subject to assignment by Adams without the consent of Newton; but if .Newton accepted the $100 as a part of the purchase money, with a knowledge that Taylor was tendering it as Adams’ assignee, he in effect ratified the assignment to Taylor, and put himself in a position of being bound to carry out the contract with Taylor, if he was, in fact, the assignee of Adams Avhen the payment was made. The bill avers that he was the assignee, and that he notified Newton at the time of mating the payment that it was to carry out the Adams option. It is true Newton could not be required to specifically perform the contract, unless he could also compel Taylor to do so. — Irwin v. Bailey, 72 Ala. 467. But if Taylor, as assignee, accepted the option given Adams, and as such assignee made a payment on the purchase price agreed upon, and which was accepted by Newton, could it be doubted that Neton could compel him to perform the contract by taking the land and paying the balance of the purchase money? We think not. Then, if the contract became binding on Taylor, it was no longer wanting in mutuality, and Avas also binding on Newton,

A party who seeks the specific performance of a contract, as a general rule, must show performance on his part, or an offer to perform, thereby enabling the court to render a, decree for the defendant, if necessary; but the allegation is formal, and it is sufficient to sIioav ability or Avillingness to. perform, and it may well be doubted whether it is material, Avliere the bill shoAvs that the complainant, has partly performed, and has been prevented from making full performance by the act of his adversary, and that further offers would not be accepted if tendered. — Jenkins v. Harrison, 66 Ala. 345; Stewart v. Cross, 66 Ala. 22; Ashurst v. Peck, 101 Ala: 499, 14 South. 541.

In the absence of an agreement as to the nature and character of the title or estate to be conveyed, the parties are presumed to contract with reference to an un-incumbered and indefeasible legal title. — Goodlet v. Hansell, 66 Ala. 151. “An agreement to make out a good title is implied from every contract for tbe sale of realty, and a purchaser is not bound to accept a doubt' ful title.” — Chapman v. Lee, 55 Ala. 620.

The complainant sufficiently avers an offer to perform bis part of the contract. He bad a right to demand information as to Newton’s title, if it did not appear of record, and to make bis offer to pay the balance of the purchase money a condition precedent. We also think the respondent Newton’s conduct, in not furnishing the information as to bis title, was sufficient to convince the complainant that an offer to perform after discovering that Netfton bad a good title would be declined, but which is not a condition precedent to the equity of the bill, as his failure to make the second tender, or offer should only affect the cost, in case of an acceptance by the respondent, in this proceeding.

Where specific performance would be decreed between the original parties to a contract, it will be decreed against their privies, unless there be some intervening equity to prevent. — Meyer v. Mitchell, 75 Ala. 475; Goodlet v. Hansell, 66 Ala. 151. The bill avers notice on tbe part of the other respondents at the time of the purchasing of the land.

It is insisted that Baird and Freeman were not proper parties to tbe bill, because they conveyed tbe land to the Hunnicutt-Neal Company before tbe bill was filed, and therefore have no interest in tbe subject-matter. They may not be necessary, but are proper, parties, and their being joined does not constitute a defect in tbe bill. They transmitted tbe title from Newton to tbe Hunnicutt Company.

Tbe chancellor erred in dismissing tbe bill for want of equity, and in sustaining tbe demurrers thereto; and the decree of tbe chancery court is reversed, and one is here rendered overruling same.

Reversed and rendered.

Haralson, Dowdell and McClellan, JJ., concur. Tyson, C. J., and Simpson and Denson, JJ., are of the opinion that the bill is without equity, and dissent.