The Montgomery advertiser., 1903-02-28

BRADSHAW V. GUfTER, EXECUTOR. Rjll In Equity to CaAcel Cloud on Title
 Appeal from the Chancery Court of
 Montgomery.
 1. Contracts, construction of.-In an &C., ton of ejectment, the plaintiff, G., recov- cred Judgment against A.. defendant, for the lands sued for. From this judgment A. appealed to the Supreme Court. Pend ing the appeal, B. As attorney, advanced to E G, for whom c was trustee under a deed of trust, certain money, and by the terms of the written contract evidence ing this advance, the sum so paid was ito stand and operate and be the full consideration to be paid said F F G and others and their grantees for their inter- est and claim on the lands in the eject ment suit'' (which they were to quit claim and convey to A) "and upon the contingency and in the event that their recovery of said lands be upheld on ap peal and the Judgment In said ejectment suit be sustained" The agreement also provided that if said judgment be re- versed on said appeal and settled in fa- vor of A. or if without such reversal, the said A, by legal or equitable proceedings, establishes its title against that here contracted to be sold, then and in that event the said note and mortgage (giVen to evidence and secure the money so fur nished by B) shall become due and pay able and be of full force and virtue etc. Held: That, under the agreement, if the case were affirmed on the appeal and the title adjudicated to belong to G. the mon- ey was not to be repaid; that if the judg- ment were reversed in such way as to settle the title against G, the note and mortgage were to stand, and become due; that, if reversed in such sort as to leave the title not adjudicated. 1t was not con- templated by such agreement that such reversal woull settle the title.
 ?. Same: prevention of performance of contract, effect of: estoppel.--B, attorney for A, defendant in an ejectment suit which was pending in the Supreme Court, on appeal. agreed with the plaintiff there !n. G. Cor persons representing the plain- tifD. to furnish them certain money, which was secured by note and mortgage upon other land. said money not to be re- paid if the title to the land in suit was adjudicated to G by an afFirmance of the judgment, but the same to be loan and the mortgage to stand as security there for, if the case were reversed and title settled in As favor. In consideration of said sum so advanced G was to convey and did convey to A her right and inter- est in said land in suit After the rever- sal of the ejectment suit. but not upon .ts merits, B, as attorney for A, inter posed therein in the lower court a plea c.nce the last continuance, setting up as a bar to the further maintenance of the suit. xhe conveyance to A by plaintiff. This plea was proven and judgment ren- Gcred thereon in favor of A. Held: That hy so doing B elected to claim G's title for A as on a purchase, and thereby waived and estopped himself to claim any concition upon which he had the right to reject the conveyance by and reclaim the purchase money as a loan. and that the mortgage would be cancelled as a cloud on G's title to the land included therein.
 8. Contract, preventing performance of; liabillty.-one who prevents performance or happening of a condition precedent, upon which his liability, by the terms of a contract, is made to depend, cannot avail himself of its non-performance.
 Affirmed.
 Opinion by Haralson, J.