Brewer v. Brewer

19 Ala. 481

Opinion

DARGAN, C. J.

Thomas J. Brewer being entitled to A pre-emption right to the north-west quarter of- section twenty-©IÍ6,- township eighteen,- range one,- west, according to the laws of Congress, did, in the year 1834,-make proof of his claim to the register and receiver of the land office at Demopolis, who issued to him a pre-emption certificate in the usual form.- But the said Thomas J. being unable to pay the government the purchase money, George W.-Brewer,-his brother,-advanced the same, and 'the'complainant assigned to him-the certificate,- A-patent for the land was subsequently issued’tO George W. as the assignee1 of Thomas J. Brewer. These facts are not controverted, and;. T think, the proof establishes that" the agreement between the~ two brothers was, that George W. Brewer should, after the is--suance of the patent, convey" to Thomas J. the east half of said' quarter section, and’in consideration that the purchase money" was advanced by George W., he was to retain the other half to Himself. In the year 1889, before George W. Brewer had parted-witli the legal title, he" stated to James Cúríy that there was a bargain between him and his brother that ho, George, was to pay the pre-emption money and have one half of: the land, and his-brother was to have the other1 half; and if his brother died, his' family woulcTtie entitled" to the east "half of said quarter section.These admissions wore made at a time, andfunder circumstances,that to my mind’go far to show" that they correctly describe the agreement between the brothers. Thomas J". Brewer was then' Jving'sick, and George W. was leaving home with tho view to be married; and they "were made for the purpose that Curry might’’ be a witness to the agreement. Under such circumstances there could have been no motive in misrepresenting the agreement, and' as it had not been reduced to writing, it was certainly proper that" it should be made known to others who could bear testimony to-the contract. The truth of these admissions, too, is to some extent corroborated by the history of the case; for, as Thomas J. Brewer was exclusively entitled to the pre-emption right, it is-scarcely probable that he intended to relinquish the entire benefit of’it" to "his brother in consideration of his paying the government price, which amounted"'to about two hundred dollars, when'the land itself was worth over a" thousand, especially as Thomas J1 was poor" andliad a family "dependent on his labor for a support: Under such circumstances it is but"reasonable to suppose,that it was the intention of the parties that some portion of the benefit of this right should he reserved to Thomas J".,-atid that he should not he excluded entirely from all benefit arising from it.» Taking then the admissions of" George W. Brewer thus deliberately made, together with the charactcr- of the transaction, and the improbability that it was the intention of the parties that Thomas should he deprived of’ all benefit iri the right of preemption which belonged exclusively "to- him, and my mind is fully "satisfied'tkat it "was the-’agreem'ent-betw'Oen';the.tWo brothers,'.th^t*- Thomas J. should have the east half in consideration of his right of pre-emption, and that George W. should have the other in consideration of his advancing the money to pay the government. Nor can it be objected that these admissions are not evidence against George W. and those who claim under him, for the rule of evidence is, that the declarations of one against his interest, that he holds as tenant or trustee of another, are admissible against him and those who subsequently succeed to his rights or estate.—1 Greenl. Ev., § 189; Varick v. Biggs, 6 Paige, 323.

The next question that arises is, whether a court of equity would decree the specific performance of this agreement between the immediate parties thereto, in the absence of any written instrument evincing its terms 1 It cannot be doubted but that a-court of equity will decree the specific execution of a parol agreement to sell or convey land, notwithstanding the statute of frauds, when there has been such a part performance of the agreement that it would work a fraud on the party seeking its specific execution, to refuse it; and I think I may safely say, that all the cases agree in this, that if the vendee has paid the purchase money and been let into possession under the agreement, this will be considered such a part performance as will entitle him to a specific performance of the parol agreement.—2 Story Eq, § 66, 67; Cummings’ Heirs v. Gill, 6 Ala. 562; Meredith v. Nash, 3 Stew. 207; Hays v. Hall, 4 Por. 375, Indeed, it may be the rule that the taking of possession without the payment of the purchase money would be a sufficient part performance to justify the court in decreeing a specific performance. This question, however, I do not consider before us. But all doubt must be removed when the possession is taken under the contract and in pursuance of its terms, and the entire purchase money is paid, that this will be held a sufficient part performance to entitle the vendee to a specific execution of the contract, ‘ Applying this rule to the agreement entered into between Thomas J. and George W. Brewer, I feel no hesitation in saying that there has been such a part performance as will entitle the former to the relief which he seeks against the latter. The right of pre-emption belonged to Thomas J., and the agreement was that George W. should have the one half in consideration of his advancing the purchase money to the government, and that Thomas J. should have the other half in consideration of his right of pre- :©mption. This -must be considered as tantamount to the payment of the purchase money, for nothing more was due to George W. before he ought to have conveyed according to the contract, and 1 think the testimony conclusively shows that from the time of the agreement, Thomas J. Brewer has had the possession and -control of the east half of said quarter section, and has also '¡made some improvements thereon. This must entitle him to a specific execution of the agreement as against George W. Brewer. The principle, too, is well settled, that where the specific execution of an agreement would be decreed between the •immediate parties, it will also be decreed between parties claiming under them, unless some other controlling equity intervenes which would render it improper, according to the rules by which courts of equity are governed, to decree its specific execution.— ■ 2 Story Eq. 96; Hays et al. v. Hall, 4 Por. 374. Thus, if one purchase lands with a knowledge of a prior contract on the part •of the vendor, to convey them to another, he is affected by all the equities that bind the land in the hands of the vendor, and it is equally true that possession by the first vendee is notice in law to the second, although in point of fact he did not know of the character of the contract under which he had the possession. Thus, if a tenant has changed the character of his holding and agreed to become a purchaser, still his possession must amount to notice of his equitable title, and a subsequent purchaser is bound by it. — Sug, on Ven., 9th edit., vol. 2, side page, 291-2; 16 Ves. 249; 2 Sch. & Lef. 583; Smith & Co. v. Zurcher, 9 Ala. 208. Indeed, it may be safely laid d’own as an invariable rule, that if one purchase land in the possession of another without inquiring into his rights or the character of his possession, he is affected with all the equitable rights binding on his vendor, and he cannot set up the want of notice to protect himself, fot seeing another in possession he was bound to inquire into the character of such possession.

It has, however, been strongly argued, that the silence and conduct of the complainant in not letting his claim be known at ■an earlier date, ought to preclude him from asserting it against Logan, who claims to have purchased the land without actual notice of the equitable title of the complainant for a valuable consideration. I cannot, however, discover in the conduct of the «complainant any such positive act, or such silence when he ought to -home spoken, as should produce a forfeiture of‘his equitable title,' or ^render it inequitable >in> him to assert it.' • He-'knew not of the conveyance to Maxwell at» the time it was 'executed; besides, this deed was voluntary. Nor did he know'>'Of'the conveyance by Maxwell to Shearer and Glover as trustees, at the time it-was'executed; and-it may be remarked thatathis deed also was without consideration, moving from the grantees to tlie grantor, and I think the testimony insufficient to show that he was present at-the public'sale by-.'the trustees when McGrew became the purchaser, ;and besides the fact that-Logan purchased by a quit claim-deed from McGrewj-it is- manifest that-the complainant had no1 knowledge of this conveyance when it was executed.. The acts or conduct of the complainant have-not become the basis of the acts of*any one through whom- the defendant -Logan claims , nor has-his. silence misled any on»; he therefore cannot bo said to have forfeited his equitable right, or through his-act or omission rendered it inequitable or- unjust now to assert it against George W. Brewer and those who claim under him.

Independent, therefore', of the bond for titles, -and assuming that-it was ante-dated, that its true date was in the year 1845, instead- of 1835, I btill think that the chancellor-erred, and that the complainant is entitled to-the relief that he. seeks. We must therefore reverse the deci’ee, and here render such decree as the court below should have rendered. -

It is,therefore ordered, adjudged-and decreed that the injunetion heretofore granted in this case be re-instated and perpetuated, and that the complainant, Thomas J. Brewer, be invested with the legal title to the east half of the north-west quarter of section twenty-one, township eighteen, range one, west, which said land is more particularly described in the pleadings, and that-he be quieted in his possession thereof. It.'is further ordered-and decreed that the complainant recover of the defendants, George. W-. Brewer and Benjamin T. Logan, his cost in tins.court-;, and said'Chancery 'Court, .