70 Ala. 452 (Ala. 1881), Munford v. Pearce

Citation70 Ala. 452
Opinion JudgeSOMERVILLE, J.
Party NameMunford v. Pearce.
AttorneyTHOS. SEAY, for appellant. A. A. COLEMAN, contra. (No briefs on file.)
CourtSupreme Court of Alabama

Page 452

70 Ala. 452 (Ala. 1881)

Munford

v.

Pearce.

Supreme Court of Alabama

December Term, 1881

Bill in Equity by Vendor, for Specific Performance.

APPEAL from the Chancery Court of Hale.

Heard before the Hon. CHARLES TURNER.

A bill to enforce a vendor's lien need not aver the vendor's willingness to convey as stipulated in his title bond, unless it stipulated that the purchase money shall not be due and payable until a deed is made.

The bill in this case was filed on the 1st September, 1877, by Mrs. Eleanor E. Pearce, against Thomas T. Munford, praying the specific performance of a contract, by which she agreed to sell and convey to said Munford an undivided one-seventh interest in a tract of land, particularly described. The terms of the original contract were thus stated in the bill: "In the year 1872, your oratrix made a verbal contract and agreement with one Thomas T. Munford, who now resides in Lynchburg, Virginia, which was in substance as follows: That your oratrix would sell and convey to him, the said Munford, one undivided seventh of the following described tract of land," describing it, "for and in consideration of the sum of $2,000, to be paid in cash as soon as your oratrix could make him good titles to said lands, and until such time the said $2,000 should bear interest payable annually; and in order to perfect titles, the said Munford should employ counsel, at the expense of your oratrix, to take such legal measures as he might deem necessary. Said Munford agreed to the terms of the above stated contract, and under it went into possession of said lands; and from that date, to February 4th, 1876, he paid to your oratrix all of the interest due on said sum of $2,000, and $46.16 in excess of interest. In 1873, said Munford employed Wm. E. Clarke, esq., to take such measures as were necessary to enable your oratrix to comply with her contract, and to convey good titles to said lands; and said Clarke, as attorney for said Munford, prepared a bill, which, in his opinion, would enable your oratrix to convey titles, and which, at considerable trouble and expense, your oratrix succeeded in getting passed by the General Assembly."

This special statute, entitled "An act for the relief of Augustus C. Pearce, Margaret Pearce, Eleanor Pearce, and Joseph Pearce, of the county of Marengo, Alabama," was approved April 9th, 1873, and after reciting that, " whereas Augustus J. Pearce, late of the county of Perry, departed this life, leaving heirs [him?] surviving his widow, Eleanor E. Pearce, and Augustus C. Pearce, Margaret Pearce, Eleanor Pearce, and Joseph Pearce, as his only children and heirs at law, all of whom are under fourteen years of age, and reside with their mother, the said Eleanor E., in said county of Marengo; and whereas the said Augustus J., at the time of his death, was seized of the following real estate, lying in the county of Hale, to-wit," describing the lands involved in this suit, "comprising all the real estate of which he died seized and possessed; and whereas his said children are, with their said mother, in law entitled to a homestead out of the said undivided one-seventh of said land; and whereas their said interest therein can not be divided and set apart to them; and whereas the said Augustus C., Margaret, Eleanor and Joseph, have no other means for their support, and it is to their advantage that their said interest in said land be sold, and the proceeds be applied to their maintenance and support,"--enacted as follows: Sec. 1. "That the said Eleanor E. Pearce, the mother of said children, be, and she is hereby, authorized and empowered to sell said interest of said Augustus C., Margaret, Eleanor and Joseph, in said real estate, in such manner, and on such terms as she may deem best." Sec. 2. "That on the payment of all the purchase-money for such interest so sold as aforesaid, the said Eleanor E. be, and she is hereby, authorized and empowered to convey, by a deed executed by her to such purchaser, all of the right, title and estate of the said Augustus C. Pearce, Margaret Pearce, Eleanor and Joseph Pearce, minors as aforesaid, in and to the said real estate; and such conveyance shall hereby vest such purchaser with full and complete title to the interest of the said Augustus C., Margaret, Eleanor and Joseph, as aforesaid, against all persons whatsoever claiming under, by, or through them, or either of them."--Sess. Acts 1872-3, pp. 154-5.

The bill contained the following additional allegations: "Although your oratrix had complied strictly with her part of the contract, and was, on and after April 9th, 1873, ready and willing to convey said land, said Munford did not comply with his part, and did not pay her the sum agreed on, though he still retained possession of the said lands. On the 4th February, 1876, said Munford came to Demopolis, and had a settlement with your oratrix; when she gave him credit for all he had paid her, and the contract for the sale and purchase of said lands was renewed, reduced to writing, and signed by the parties. In this renewal of the contract, however, it was agreed that, instead of the $2,000 to be paid in cash, the said Munford should give your oratrix his three promissory notes, for $666.66 each, dated February 4th, 1876, and payable on the 1st January, 1877, 1878, and 1879, respectively, with interest payable annually," &c.; "and said Munford then and there executed his three promissory notes, and delivered them to your oratrix, and she immediately credited the first note, by indorsement thereon, as they had agreed, with the sum of $42.16, the amount of interest overpaid her; and your oratrix then gave to said Munford a bond, in the ordinary form, to make titles to said lands on the payment of the said notes." The notes were made exhibits to the bill, and it was alleged that they were unpaid. On these allegations, the bill prayed that Munford be required, by the decree of the court, "to carry out and perform his part of said contract, as in equity and good conscience he ought to do; that an account be stated between complainant and said Munford, and a decree be rendered against him, in her favor, for the amount ascertained to be due her, and execution be ordered to issue thereon, to be levied of the goods and chattels of said Munford, exclusive of said lands;" that the lands be sold, in default of other property,...

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15 practice notes
  • 193 So.2d 519 (Ala. 1966), 3 Div. 204, McDonald v. McDonald
    • United States
    • Supreme Court of Alabama
    • October 13, 1966
    ...v. Northcutt, 262 Ala. 98, 77 So.2d 336; Butler v. Butler, 274 Ala. 352, 148 So.2d 638; May v. Lewis, 22 Ala. 646; Munford v. Pearce, 70 Ala. 452; Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. It was proper to set the allowance to......
  • 77 So.2d 336 (Ala. 1954), 5 Div. 600, Northcutt v. Northcutt
    • United States
    • Supreme Court of Alabama
    • December 2, 1954
    ...is grantable under the general prayer which is in accord with the case made by the bill. May v. Lewis, 22 Ala. 646; Munford v. Pearce, 70 Ala. 452; Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. In view of the fact that permanent alimony......
  • 18 So.2d 91 (Ala. 1944), 6 Div. 227, Alabama Butane Gas Co. v. Tarrant Land Co.
    • United States
    • Supreme Court of Alabama
    • May 18, 1944
    ...So.2d 887; Mizamore v. Berglin, 197 Ala. 111, 72 So. 347; Seabury v. Doe ex dem. Stewart, 22 Ala. 207, 58 Am.Dec. 254; Munford v. Pearce, 70 Ala. 452. When the purchaser acquires such adverse title it inures to the benefit of the vendor, but the purchaser is entitled to be reimbursed for hi......
  • 4 So. 276 (Ala. 1888), Shelby v. Tardy
    • United States
    • Supreme Court of Alabama
    • May 24, 1888
    ...which it can be referred. A general prayer for relief is sufficient in ordinary cases. Shipman v. Furniss, 69 Ala. 555; Munford v. Pearce, 70 Ala. 452; Machine Co. v. Zeigler, 58 Ala. 221. We concur with the chancellor in holding that the thousand dollars, first payment made on the land pur......
  • Request a trial to view additional results
16 cases
  • 47 So. 468 (Miss. 1908), Belzoni Oil Co. v. Yazoo & Mississippi Valley Railroad Co.
    • United States
    • United States State Supreme Court of Mississippi
    • November 2, 1908
    ...First Nat. Bank v. Acme White Lead & Color Co., supra; May v. Lewis, 22 Ala. 646; Betts v. Gunn, 31 Ala. 219; Munford v. Pearce, 70 Ala. 452; Rice v. Eiseman, 122 Ala. 343, 25 So. 214. The learned chancellor, in refusing to allow the amendments proposed by the complainant, proceeded upo......
  • 193 So.2d 519 (Ala. 1966), 3 Div. 204, McDonald v. McDonald
    • United States
    • Supreme Court of Alabama
    • October 13, 1966
    ...v. Northcutt, 262 Ala. 98, 77 So.2d 336; Butler v. Butler, 274 Ala. 352, 148 So.2d 638; May v. Lewis, 22 Ala. 646; Munford v. Pearce, 70 Ala. 452; Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. 1084. It was proper to set the allowance to......
  • 77 So.2d 336 (Ala. 1954), 5 Div. 600, Northcutt v. Northcutt
    • United States
    • Supreme Court of Alabama
    • December 2, 1954
    ...is grantable under the general prayer which is in accord with the case made by the bill. May v. Lewis, 22 Ala. 646; Munford v. Pearce, 70 Ala. 452; Rosenau v. Powell, 173 Ala. 123, 55 So. 789; Staples v. Barret, 214 Ala. 680, 108 So. 742, 46 A.L.R. In view of the fact that permanent alimony......
  • 18 So.2d 91 (Ala. 1944), 6 Div. 227, Alabama Butane Gas Co. v. Tarrant Land Co.
    • United States
    • Supreme Court of Alabama
    • May 18, 1944
    ...So.2d 887; Mizamore v. Berglin, 197 Ala. 111, 72 So. 347; Seabury v. Doe ex dem. Stewart, 22 Ala. 207, 58 Am.Dec. 254; Munford v. Pearce, 70 Ala. 452. When the purchaser acquires such adverse title it inures to the benefit of the vendor, but the purchaser is entitled to be reimbursed for hi......
  • Request a trial to view additional results

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