Whitehurst, use, &c. v. Boyd.

tings. In such cases the intent of the parties are said to extend a controlling influence; and for the purpose of ascertaining this, regard must be had to the whole instrument-no particular form of words being necessary to constitute a test, whether the covenants are, or are not independent. [2 Pick. Rep. 451.] In Watts v. Sheppard, 2 Ala. Rep. 425, we said, that the first general principle in the construction of contracts, is, if possible to carry into effect the intention of the parties. To do this the subject matter of the contract, the situation of the parties, the motives that lead to it, and the object to be attained by it, are all to be looked to. Further, that such a construction must, if practicable, be placed upon a contract, as will make every clause operative. To the same effect see my opinion in Bates & Hines v. The State Bank, 2 Ala. Rep. 451; 2 Cow. Rep. 781; 3 Miss. Rep. 447; 1 Harring. Rep. 154.]

The case before us, bears no analogy to George & George v. Stockton, 1 Ala. Rep. 136, or any of our previous or subsequent decisions in which the same legal questions are discussed. In that case, it is said to have been "repeatedly adjudged, that the vendee of real estate, who has executed his note for the payment of the purchase money on a day certain, and received from the seller a bond conditioned to make title generally, cannot successfully resist an action at law on the note, upon the ground that no title had been made." "This principle rests upon a rule which has been often applied to covenants, viz: when the money is to be paid at an appointed time, and the day of payment is to happen, or may happen, before the thing which is the consideration. of the payment of the money is to be performed, the performance of the thing is not a condition precedent to the right to demand the money." The condition of the bond in that case, it is true, was expressed in unusual terms, so as to leave its meaning open to construction. After describing the land, it stated the amount of the purchase money to be "four hundred dollars, payable on the 25th day of December next: now if the above bound John C. Stockton, shall make, or cause to be made, to the said James C. George, a good and equitable title to the above described land, then he, the said James C. George, shall pay the said sum of four hundred dollars, then the above obligation to be void, otherwise to remain in full force and virtue." We were of opinion, that considering the note and bond, as evidencing but a single con

Whitehurst, use, &c. v. Boyd.

tract, the making the title was not a condition precedent, to the right to demand the payment of the note. See also, 1 Chit. Pl. 315; 2 Blacks. Rep. 1313; Willes' Rep. 146, 496.

It is unquestionably true, that where different instruments of writing are made at the same time, between the same parties, and relating to the same subject matter, they constitute but one agreement; and the Court will presume such priority in their execution, as will best effect the intent of the parties. [3 Mass. Rep. 138; 9 Cowen's Rep. 274; 5 Pick. Rep. 395; 10 Id. 250, 302; 13 Wend. Rep. 114; 10 Mass. Rep. 327, 379; 11 Id. 302.] And it may be added that such instruments are to be construed together. [5 Pick. Rep. 181, 395; 10 Pick. Rep. 298; 13 Mass. Rep. 87.] But this proves nothing adverse to the defence set up in the present case. Here, although the defendant promised to pay upon certain days, yet he limited his liability by a proviso, which we have already stated, and said that the existence of the state of things against which it guarded would furnish a bar to the action. See the Bank of Columbia v. Hagner, 1 Peter's Rep.

465.

An undertaking to convey a title, it has been held, means a legal title; and where the right to demand the purchase money ist dependent thereupon, the convepance of such a title is a conidtion precedent. [Clute v. Robinson, 2 Johns. Rep. 613; 10 Id. 266; 3 Munf. Rep. 159; 6 Id. 170; 12 Johns. Rep. 436; Wright's Rep. 644; 1 Blackf. Rep. 380; 2 Greenl. Rep. 22; 2 Sergt. & R. Rep. 498.]

It is argued for the plaintiff that the proviso in the writing declared on, is in effect nothing more than an undertaking to execute a "good and sufficient" deed of conveyance, and that the issue which it was proposed by the declaration and replication to form, narrowed the inquiry to the sufficiency of the deed, in point of form. We will not stop to inquire whether a covenant to execute a deed of that character, refers merely to the deed and not the title; and is consequently performed by the delivery of a formal conveyance. However this may be, we think it perfectly clear the case at bar does not come within the influence of such a principle. Here the writings recite that the deed was already executed, and the defendants object was to be secure in the payment of the money, by reserving to himself the right to scan the title, which the plaintiff had undertaken to convey, and if it

Scroggins v. McDougald, et al.

should be found to be defective, or incumbered, then to withhold the purchase money. The language employed, and the obvious purpose of the proviso all speak such to have been its meaning.

In respect to the insufficiency of the deed to convey the legal title of the plaintiff's principal, we need not inquire, since the plea alledges that the title to one quarter section of the land which it undertook to convey, was not in Giddins when the deed was executed, but was then, and had been ever since, in Messrs. Hagerty & Co. This plea, if true, is an answer to the action, and in the state of the pleadings, its truth is not open to contestation. The view taken shows that the replication is bad; it answers the plea but in part, by asserting that the deed was executed under a power, which is set out in extenso, and thence concluding that it is "good and sufficient ;" while it leaves unanswered the allegation of Giddins' want of title.

If the vendor cannot make a good title so as to authorize him to demand the purchase money, perhaps a Court of Chancery is competent to administer relief, so far as may be compatible with the contract of the parties, and in harmony with the justice of the case. But we will not undertake to prescribe a remedy. The decision of this cause does not require it.

It remains but to add, that the judgment of the Circuit Court is affirmed.

SCROGGINS v. MCDOUGALD, ET AL.

1. When a vendee is in the occupancy of land, which the vendor afterwards sells to another, to whom he transfers the evidence of legal title, the subsequent purchaser is charged with notice, and will be considered as holding the legal title as a trustee for the first vendee; but is entitled to be reimbursed money expended necessarily in completing the legal title.

Writ of Error to the Court of Chancery for the 14th District.

THE case made by the bill is this:

Certain persons named in the bill were constituted commissioners of the town of Crawford, in Russell county, for the purpose of selling lots therein, and conveying titles to the same. Some

Scroggins v. McDougald, et al.

time in the year 1840, these commissioners sold to one McLean, a certain lot described as No. 27, and executed to him a certificate of the purchase. McLean went into possession of the lot, improved it, by building a log cabin, &c. and afterwards, in March, 1841, sold the lot for $300, to one Bagly, and executed to him a bond conditioned to make titles, whenever he should receive the purchase money. Afterwards, Bagly being indebted to the complainant, transferred to her the bond which McLean had executed to him to make titles. The complainant, at the time of the transfer of the bond, went into possession of the lot, and has remained in possession ever since. After the transfer of the land, Bagly paid the notes executed by him to McLean for the purchase money. McLean, after the transfer of his bond to the complainant by Bagly, in the early part of the year 1812, transferred the certificate issued to him by the commissioners to McDougald, the defendant, without any consideration paid therefor, and McDougald afterwards procured the commissioners to execute a deed conveying to him the fee simple title, upon which he commenced an action at law, to recover the lot from the complainant, and refuses to convey the title to her.

The bill prays that McDougald may be restrained from pursuing his said suit, and compelled to convey titles to the complainant.

McDougald admits that McLean purchased the lot from the commissioners, as stated by the bill, and asserts that McLean transferred the certificate to him in payment of a debt which had been long due. He asserts also, that he was entirely ignorant that McLean had sold the lot to any other person, or that any one was in possession of it when the certificate was transferred, and that he furnished McLean money to pay the last instalment due the commissioners. He admits that a deed in fee has been executed by them to him, which he exhibits.

The bill as to McLean was taken as confessed, and the testimony shows that Bagly was in possession of the lot in the years 1841 and 1842, and possibly longer; also, that the notes given by him to McLean, for the purchase money, have been paid.

It was also admitted by the solicitor for McDougald, that the complainant lived with Bagly on the lot in question, and had no other place of residence; that she was a single woman, and had

Scroggins v. McDougald, et al.

no other relative, and lived there with Bagly, at the time when the deed to McDougald was made.

The Chancellor dismissed the bill at the hearing, chiefly because it did not appear from the evidence in the cause, that McDougald knew that the possession of the lot in dispute was with the claimant when the defendant acquired his equitable, as well as legal title to the lot.

This is now assigned as error.

S. HEYDENFELDT and PECK, for the plaintiff in error argued the following points:

1. The possession of the claimant was adverse at the time of the execution of the deed, and the deed being void for this, [Dexter v. Nelson, 6 Ala. Rep. 68,] the parties are thrown on their respective equities, and that of the complainant being the oldest, and accompanied by possession, must prevail.

2. If McDougald's purchase was fair, yet he is chargeable with notice of the equity of the complainant, on account of her possession at the time of McDougald's purchase. [1 Atk. 522; 2 Lom. & Stu. 472; 2 Sch. & Lef. 315; 13 Vesey, 120; 14 Ib. 433; 2 Paige, 574; 6 Madd. 59.]

3. McDougald is not a bona fide purchaser, for a valuable consideration, and therefore cannot protect himself even if without notice. [4 Paige, 215; 19 John. 282; 20 Ib. 637; 1 Ala. Rep. N. S. 21.]

J. E. BELSER, contra.

GOLDTHWAITE, J.-The admissions of the counsel for McDougald, as well as the evidence of the only witness examined in the cause, establishes that the complainant and Bagly, under whom she claims, had the actual possession of the lot at the time when McLean assigned the certificate of the commissioners to McDougald, by means of which he subsequently obtained the title. The only question therefore, in this aspect of the case is, whether the possession so held was a sufficient matter to put the defendant, McDougald, upon inquiry as to the title of the occupants, and thus affect him with notice, although, in point of fact he had no information that the possession was thus held. It is laid down very generally in the books, that whatever is sufficient