Observance of such terms of the contract by the vendors was essential before the sale was consummated. Nicolopoolos v. Hill, 217 Ala. 589, 117 So. 185, 59 A.L.R. 185; Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856; Crim v. Umbsen, 155 Cal. 697, 103 P. 178, 132 Am.St.Rep. 127; Geller v. Kings County Mortg. Co., 97 Misc. 707, 162 N.Y.S. 183; Donald v. Reynolds, 228 Ala. 513, 154 So. 530; Hardin v. Union Mut. Life Ins. Co., 222 Iowa 1283, 271 N.W. 176; Roby v. Arterburn, 269 Ky. 816, 108 S.W.2d 873; Greenberg v. Lanningan, 263 Mass. 594, 161 N.E. 882; Seibel v. Purchase, C.C., 134 F. 484; Dowery v. Levenson, 247 Mass. 358, 142 N.E. 85; Benton v. Davison, 51 S.D. 91, 212 N.W. 500; Friedman v. Katzner, 139 Md. 195, 114 A. 884; Curwen, Abstracts, ยง 36. By making time the essence of the contract, appellant was vested with a substantial right, and he is entitled to the protection of that right. Whitfield v. McClendon, supra; Nicolopoolos v. Hill, supra; Benton v. Davison, supra; Weiner v. Simons, 267 Mass. 327, 166 N.E. 765; Kane v. Rippy, 22 Or. 296, 23 P. 180; Taylor v. Williams, 2 Colo. App. 559, 31 P. 504. It is the essence of an interpleader suit that the party claiming the remedy shall be and con
Good and marketable title requires that it be free from encumbrances. Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856; Johnson v. Malone, 252 Ala. 609, 42 So.2d 505. Although the trial judge in the finding of facts in the decrees makes several remarks about the title, he does not adjudicate the issue referred to and, therefore, neither decree constitutes a final decree as to the question of title. We have also noted that in the second decree the judge orders and decrees that if the complainants (appellants) do not follow the directions of the decree, the respondents (appellees) "shall be and are allowed to reopen the case within 30 days from this date, on the sole question as to what amount, if any, that they are entitled as an equitable judgment for the breach of the contract."
Under contract to purchase realty requiring vendor to furnish complete abstract of title disclosing good and merchantable title, purchaser had the right to rescind the contract for failure of the vendor to furnish such abstract. Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856; Johnson v. Malone, 252 Ala. 609, 42 So.2d 505; Boylan v. Wilson, 202 Ala. 26, 79 So. 364. Under a contract for the conveyance of good and merchantable title, a purchaser cannot be compelled to accept title with fractional interest in the minerals in the lands outstanding in parties other than vendor.
Jones v. Laird, Ala., 42 So. 26; Meeks v. Meeks, 247 Ala. 606, 25 So.2d 668. Inability of vendor to make good title or failure to furnish abstract was good defense against suit. Whitehurst v. Boyd, 8 Ala. 375; Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856. Suit for recovery of land sold for taxes must be brought within three years from time purchaser was entitled to deed. Code 1940, Tit. 51, ยง 295; Pfaffman v. Case, 259 Ala. 411, 66 So.2d 890. Appellee was barred by laches.
However, in Blair v. Blair, 199 Ala. 480, 481-482, 74 So. 947, a statutory ejectment action, it was observed that "possession is a fact to which a witness may testify or upon which he may give an opinion or conclusion, though this is not true as to title to land." See, also, Whitfield v. McClendon, 251 Ala. 591, 594-595, 38 So.2d 856. Bearing on the question is the following from 20 Am.Jur., Evidence, ยง 772, p. 644:
We agree with appellant that requested charge No. 1 given for the plaintiff might be regarded as misleading. It was not, however, erroneous since the plaintiff was entitled to a verdict in some amount. Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856; National Life Accident Ins. Co. v. Lokey, 166 Ala. 174, 52 So. 45. Therefore, to avert any misleading tendency, it was incumbent upon the defendant to have requested an explanatory charge. We are impressed that the oral charge of the court in connection with the many given charges requested by the defendant fairly presented the issues to the jury without prejudice to the defendant.
The circuit court was convinced, and properly so, that items forming the basis of objection to title were "of much importance and amply adequate to require steps on the part of the seller to make her title marketable in accordance with the well-established" rules. Douglass v. Ransom, 205 Wis. 439, 451, 452, 237 N.W. 260; Id. 198 Wis. 445, 224 N.W. 473; Haumersen v. Sladky, 220 Wis. 91, 103-105, 264 N.W. 653; Anno. 90 A.L.R. 609, and cases there collated; Whitfield v. McClendon, 251 Ala. 591, 38 So.2d 856; Curatelli v. Barnard, 120 N.J.L. 476, 200 A. 795. There was no showing of ability or willingness on the part of defendants to perform under the marketable-title clause in the contract. And the rule with relation to liquidating damages has been declared to be that liquidated damages, when stipulated in a contract to be paid in violation of the terms thereof, are recoverable only in case of a substantial breach.