It is the writer's opinion that the decree of the chancellor was well rendered, both in its conclusions of fact and the application of well-settled legal principles thereto. As the writer understands the facts disclosed by the record, the reversal of the decree results in the decision of a case not presented by the record. The material facts of the case as disclosed by the record are these:
On October 24, 1913, E. M. Woodley (complainant-appellant) owned the 40 acres of land described in the bill. He conveyed this *Page 665 land to his son, the defendant-appellee, and at the same time the defendant-appellee executed to the complainant-appellant a mortgage on the land therein conveyed in which it was recited:
"* * * That for and in consideration of S. Z. Woodley and wife, E. H. Woodley, the grantors in this conveyance, being indebted to E. M. Woodley and wife, E. R. Woodley, the grantees herein in the sum of $1 and one one-fourth of all crops raised on said land as long as the grantees live, and at the death of the grantees this mortgage becomes null and void, this mortgage becomes the property of S. Z. Woodley, * * * and for the purpose of securing the payment of the same," the land in question (and no other) was subjected to a mortgage to the grantors in the deed.
The mortgage also conferred upon the complainant-appellant the power of sale in the event of default in the payment of "said rent." The mortgage was filed for record in the probate office on May 30, 1914. Both the deed and mortgage were drawn by a justice of the peace. The original bill was filed May 30, 1916, and the cancellation of the deed was prayed on the specific ground that its execution was procured by undue influence exerted by the son upon the father, grantor. There was a general prayer for relief. On December 14, 1916, the original bill was amended by the addition of this to the prayer:
"In the event the complainant is mistaken in the relief hereinbefore prayed for as to the cancellation of the deed mentioned in the bill complainant prays that a lien be declared in favor of the complainant upon the land described in the bill for the value of the one-fourth of the crops grown upon said lands, or which said lands would reasonably produce if properly cultivated, and that upon the failure of the respondent to pay the amount of one-fourth of said crops, that said lands be sold for the purpose of satisfying the same, and that it be referred to the register to ascertain and report to this court the value of the one-fourth of what said lands would produce as aforesaid, and complainant prays for general relief."
The defendant-appellee filed an answer and cross-bill; but the final decree, from which the appeal is prosecuted, only concluded against the complainant-appellant, awarding no relief to the defendant-appellee on his cross-bill. The evidence entirely failed to sustain the charge that the deed was procured by undue influence. If it was the purpose of the amended prayer to impose a lien on the land by implication, that could not prevail, for this conclusive reason, among others, a mortgage, a contract lien, was taken by the complainant from the defendant to secure the performance by the defendant of the contract recited in the mortgage, quoted above, thus excluding the possibility of the lien by implication or otherwise. Fields v. Drennen, 115 Ala. 558,22 So. 114; Campbell v. Goldthwaite, 189 Ala. 1-7, 66 So. 483.
Under the general prayer, a majority of the court grants relief to the complainant-appellant upon the ground that, according to the contract between these parties, the title to the land revested in the complainant-appellant under the operation of the intervention of a condition subsequent, and so in consequence of the conclusion of fact that the defendant-appellee had engaged to support the grantors in the deed during their lives. There is nothing in the conveyance or in the mortgage or in the evidence in the record to suggest, even, that the defendant-appellee engaged to support the grantors (complainant-appellant and his wife), or either, during their lives, or for any other period. As the quoted recital from the mortgage shows, the entire obligation of this grantee-mortgagor was to pay $1 and the promise to give the grantors "one-fourth of all crops raised" on the lands described in the deed and in the mortgage. That was the only consideration for the deed. There was no promise of or obligation assumed by the grantee-mortgagor to raise any particular kind of crops on the lands described in these instruments. He did not engage to raise cotton on the land. His duty under his promise was to raise crops, and his promise would have been and was discharged by raising any or all of the crops usually grown in that section. Not only did the deed and the mortgage disclose a common intent opposed to the assumption of an obligation to support the grantors during their lives, but also the complainant himself testified that he was the owner of 127 acres of land besides the 40 acres here in question. Furthermore, there is in the record no suggestion whatever that either of these parties intended the creation of a condition subsequent which would work the forfeiture or reinvestment of the title granted if the grantee-mortgagor should not raise crops on the land in accordance with his promise as set forth in the mortgage. In Zimmerman v. Daffin,149 Ala. p. 388, 42 So. 858, 9 L.R.A. (N.S.) 663, 123 Am. St. Rep. 58, decided 11 years ago this was approvingly quoted from 2 Devlin on Deeds, § 970:
"A deed will not be construed to create an estate on condition, unless language is used which, according to the rules of law, ex proprio vigore, imports a condition, or the intent of the grantor to make a conditional estate is otherwise clearly and unequivocally indicated. Conditions are not to be raised readily by inference or argument."
The same doctrine was announced in Elyton Land Co. v. Railroad Co., 100 Ala. 396, 405, 406, 14 So. 207, decided more than 20 years ago, and in Vizard v. Robinson, 181 Ala. 349,357, 358, 61 So. 959. The doctrine of these decisions concludes expressly against the creation of conditions subsequent by parol or by implication. The application of this long-established doctrine to the contract under consideration requires the conclusion that the parties thereto never contemplated or intended the creation of a condition subsequent, much less stipulated therefor in any form or degree satisfactory to the quoted rule prevailing in Alabama. The *Page 666 complainant-appellant owned the land. He sold and conveyed it for a specified consideration of $1 and the grantee's promise to give one-fourth of all the crops raised on the land described in the conveyance so long as the grantors should live. The grantee in the conveyance gave the grantors a mortgage on the land to secure the performance of the stated promise on the part of the grantee-mortgagor. The means, measure, and effect of this contract between these parties manifested, unmistakably, a purpose on their part in obvious opposition to the theory that they, or either of them, intended the creation of a condition subsequent in the premises. If, however, it should be assumed, notwithstanding the record, that a condition subsequent was efficiently created within the doctrine of the cases above noted, the undisputed evidence, including that of the complainant-appellant himself, affirmatively showed that the grantee-mortgagor raised crops on the land in question during the crop years 1914 and 1915, and that during these years the complainant-appellant received a part of these crops, thereby conclusively negativing any breach of a condition subsequent predicated of a failure or refusal on the part of the grantee-mortgagor to raise crops on the land, for the years 1914 and 1915. The defendant-mortgagor testified that during the years 1914 and 1915 he gave the complainant-mortgagee the crops that were his due. He testified:
"I paid him the rents on the land two years. The first year I paid him two bales of cotton and the seed out of them and some hay, anyhow 75 bushels of corn. I made an estimation of it at that time at prices then and it was from $100 to $150. The second year, 1915, there was about 75 bushels of corn again, a ton and a half or 2 tons of hay, 50 some odd bushels of wheat, a few peas, but don't remember how many. Several baskets of peas. He helped divide the velvet beans and my part was 780 pounds and he got his fourth. Last year's part I gave him came to over $100. I have paid him from $200 to $250 or more on the land."
The complainant himself testified:
My son [defendant-mortgagor] paid rent on the lands for 1914 and 1915 * * * and I foreclosed the mortgage before any crop was made in 1916."
The complainant, as this quotation from his testimony discloses, foreclosed the mortgage by a sale under the power on May 25, 1916. At this sale the defendant-mortgagor bid the sum of $700. A mortgagor may purchase at a sale under his own mortgage, provided there is no outstanding subsequent incumbrance he is obliged to satisfy. 3 Jones on Mort. (7th Ed.) § 1887. Having given the complainant-mortgagee his part of the crops for the years 1914 and 1915, and the sale under the power having been had by the complainant-mortgagee before the 1916 crop was made, it readily appears why the defendant-mortgagor testified as follows:
"There was $1 due on the mortgage which was the consideration that I had never paid. Outside of that it was all paid at that time. I made him a tender of $1 with 8 per cent. interest on it, amounting to $1.21 on the 25th of May last [1916]. I tendered him 10 per cent. of that amount for attorney's fee, which was 12 cents more. I offered him $1 to pay the recording fee of the mortgage. He refused to take it. I asked him if there was anything else due on the place and he said 'No.' "
If the defendant-mortgagor was mistaken in the amount he should have tendered under his bid ($700) at the foreclosure sale, surely that fact does not justify the imposition of a penalty upon him nor work the forfeiture of any substantial right either one of the parties had. The defendant-mortgagor's bid fastened upon him the obligation to pay the complainant-mortgagee the amount of the bid, because, as stated in the majority opinion, "the foreclosure operated a satisfaction of the mortgage" (Jackson v. Tribble, 156 Ala. 480,47 So. 310), and of course there could be no foreclosure unless there was a purchaser — in this instance the mortgagor — at the bid sum of $700.
The conclusion of the majority of the court seems to be rested upon the decisions to be now briefly noticed. Brindley v. Brindley, 197 Ala. 221, 72 So. 497. The opinion in which the court concurred in this case lends no support to the conclusion prevailing in the case at bar. The statement in the report of that case that the courts have generally found a way to relieve where the undertaking is to maintain and support the grantor was the view of the writer only; the concurrence being so limited as to exclude approval of that individual expression of the author of the opinion. Richter v. Richter, 111 Ind. 456,12 N.E. 698. There the writing did expressly provide for the maintenance and support of Henry G. Richter. This case should not be accorded influence in the present circumstances, for the simple reason that the case under consideration has in it no engagement or obligation to maintain and support the grantor. Pomeroy, when treating a promise to maintain and support as a consideration for the grant of land, at section 686, vol. 6, has stated the fact that:
"In Wisconsin and Indiana, the grantee's promise, though oral, is treated as a condition subsequent on a breach of which the grantor has a right of re-entry, and, generally, the right to have his title quieted or the cloud cast thereon by the conveyance removed."
Reference to decisions in Indiana disclose the fact that there the effect of well-recognized legal principles have been at least illogically denied in order to avoid the consequences of hard cases. As appears from the note of the annotator at page 919 et seq. of 43 L.R.A. (N.S.), the courts of the states of Wisconsin and Indiana recognize and apply the doctrine that a condition subsequent may be implied; in immediate opposition to the doctrine established in this state through Zimmerman v. Daffin and Elyton Land Co. v. Railroad Co., supra. Unless this court is willing to overrule these cases, the doctrine *Page 667 accepted in Wisconsin and Indiana cannot be soundly followed in this jurisdiction. Bethea v. McCullough, 195 Ala. 480,70 So. 680. In this case the parties stipulated in the writing that if the payment provided should not be made within a specified time the conveyance should be no longer of any effect, thus creating a condition operative upon the estate granted. The case is without bearing upon this appeal. Seaboard Air Line Railroad Co. v. Anniston Mfg. Co., 186 Ala. 264,65 So. 187. This case is in immediate conflict with the doctrine of Zimmerman v. Daffin and Elyton Land Co. v. Railroad Co., supra. It seems that the conclusion was there attained through the uncertain process which has influenced the courts of Wisconsin and Indiana, which is in opposition to the doctrine long established in this state. It had not theretofore been held by this court in any case that the breach of a promise, affording the consideration of an executed conveyance, operated in any wise to create a condition subsequent. See Dixon v. Milling, 102 Miss. 449, 59 So. 804, 43 L.R.A. (N.S.) 920, 921. If it is assumed that the case under consideration is of the class of cases wherein lands are conveyed upon the promise of the grantee to maintain and support the grantor or another, the cancellation decree in the present case is in immediate conflict with Gardner v. Knight,124 Ala. 273, 27 So. 298, in which, in this particular, sound legal principles were recognized and applied.
In my opinion, the decree of the chancellor was correct, and should have been affirmed.