
    Jackson v. Badham.
    
      Bill to Quiet Title.
    
    (Decided May 13, 1909.
    Rehearing denied June 30, 1909.
    50 South. 131.)
    
      Deeds; Delivery; Condition; Wci/iver. — Where a grantor conveyed lands to a trustee to be held until the formation of a certain company, the trustee to convey to the company if it agreed to fulfill certain expressed conditions, and the grantor was to receive a certain amount in cask, ancl tke balance in paid up stock of tke company, tke grantor by receiving tke stock wkick was to be issued to kim on tke final delivery of tke deed, and by attending meetings of tke stockholders while tke land was being platted, etc., waived a fuller compliance with tke conditions, although they were to precede actual delivery of tke deed.
    Appeal from Jefferson Chancery Court.'
    Heard before Hon. A. H. Benners.
    Bill by Mollie Jackson against Henry L. Badham to quiet title. Decree for respondent and complainant appeals.
    Affirmed.
    George Huddleston, for appellant.
    No matter how unessential the directions in a power may seem, one who conveys another’s land under it must comply strictly with all the directions, conditions, etc., in the power, or title will not pass; and the burden is on him who claims under such a conveyance to show such compliance.- — Wood v. Lake, 62 Ala. 489; Jones v. Morris, 61 Ala.- 518; March v. England, 65 Ala. 275; 22 A. & E. Ency. of Law, 1098. A conveyance of land at a time when it is held adversely is void. — 2 Mayf. 92. A vendor who remains in possession of the land sold, and with knowledge of the vendee, claims and holds the same adversely to the vendee for ten years acquires title.— Dolittle v. Robinson, 109 Ala. 412; Yancey v. Savannah fío., 101 Ala. 234. Where the homestead occupied by the husband at the time of his death does not exceed the area and value allowed by law as exempt, a selection of such property by the widow is not necessary to enforce the right of homestead exemptions, and if the same constitutes all of the decedent’s property, the title vests absolutely in the widow. — Qumn v. Campbell, 126 Ala. 280; Faircloth v. Carroll, 137 Ala. 247; Secs. 4196-7-8, Code 1907, and cases cited. Defendant cannot defeat-the action by showing a superior title in a stranger who had conveyed to defendant while the land was adversely held. — Kendrick v. Golyar, 148 Ala. 597.
    Perot, Benners & Burr, for appellee.
    No brief came to the Reporter.
   SIMPSON, J.

The bill in this case was filed by the appellant under the statute to quiet title, and also prays that, if it shall be found that the defendant, asserts title through any invalid or illegal title, the same shall be canceled and set aside as null and void. It appears, from the pleading and proof, that on October 24, 1887, John Jackson, who was the owner of the land in question, executed a deed (which was joined in by his wife, the complainant) conveying the land to M. T. Slimmer, as trustee, to be held by him until “the construction company * * * complies with its contract of December 13, 1886, which said contract is made a part of this deed,” and provides that if the construction company fails to comply with its contract the deed is to be void. The consideration named in the deed is $80 n hand paid and 5.20 shares in the Clifton Land Company. Said contract is between said Summer and various landholders, including said Jackson, who agree to deliver deeds to the land company to be formed, at the price of $75 per acre, $10 in cash, and $65 in full-paid, nonassessable stock, and said Summer is to convey the said property to said land company when formed, “and provided, also, that the construction company 7 * * agree and bind themselves to fulfill the following terms and conditions of this contract” — and goes on to provide for the purchase of 1,000 acres of land, also the right of way for a railroad, which is to be built and equipped, “work on said railroad to be begun as soon as rights of way are secured, and in no event longer than 60 days from the organization of the land company.” A subsequent agreement was made, dispersing with the absolute requirement of securing 1,000 acres of land, and while the name of said Jackson seems to be signed by O. McAdory, to said agreement (which is Exhibit X), yet the agreement of counsel in this case states: “It is agreed that Exhibit X, attached hereto, is a true and correct copy of agreement entered into between John Jackson and others and Summer, trustee, together with the modification thereof.” John Jackson is now dead, and the complainant claims as Avidow under the homestead exemption statute.

The claim of the complainant is that, according to said agreement, the deed was not to be made by the trustee to the land company until all the provisions of the contract Avere complied with, and that therefore his act in conveying the property, before such compliance, was beyond his authority as trustee, and the deed void. We understand the agreement to be that the property Avas to be conveyed to the land company “ivhen it was formed,” provided the construction company agree and bind themselves, etc. But, in passing over this question as to whether time was made of the essence of the agreement, we think the evidence is not cleaT and satisfactory as to what part of the land, beyond the 1:avo acres reserved, on which was the dwelling house, Avas in possession of Mrs. Jackson, either before or at the time-of the filing of the bill. The evidence also sIioavs that the agreement Avas substantially performed, and, if there was any failure, the testimony is not controverted that Mr. Jackson, in his lifetime, received the stock which' Avas to be issued to him on the final delivery of the deed to the land company; that he attended the meetings of the stockholders, Avhile the land was being platted, etc., thus showing a waiver of any conditions which might have been insisted on; and no offer is made to return the stock.

On the whole evidence, we think the chancellor decided correctly, and the decree of the court is affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and Sayre, JJ., concur.  