Alexander v. Abernathy

• Decision Date: 06 May 1926
• Docket Number: 6 Div. 610
• Parties: ALEXANDER v. ABERNATHY.
• Court: Alabama Supreme Court

108 So. 849

215 Ala. 41

ALEXANDER v. ABERNATHY.

6 Div. 610

Supreme Court of Alabama

May 6, 1926

Rehearing Denied June 24, 1926

Appeal from Circuit Court, Jefferson County; W.M. Walker, Judge.

Bill in equity by Mattie H. Alexander against T.S. Abernathy for specific performance of a contract to sell and convey real estate. From a decree for respondent, complainant appeals. Reversed and remanded.

Rudulph & Smith, of Birmingham, for appellant.

Martin Thompson, Foster & Turner, of Birmingham, for appellee.

ANDERSON C.J.

The contract in question provided:

"Title to be good and merchantable or contract void and earnest money to be refunded. Sale to be complete within thirty days from date, or as soon as merchantable title can be effected."

This strictly speaking, was not a 30-day contract unless a merchantable title could be shown within that period, and, if not, a reasonable time was given for the effectuation of same. An abstract of title was furnished which disclosed two defects, one of which was promptly waived by the purchaser but she declined to consummate the trade unless the building restriction of the Milner Company, a former owner, was removed, and both parties by themselves and agents undertook to get this obstacle removed and spent considerable time in doing so, as the matter dragged along for months and seems to have not been finally abandoned by the appellee until the receipt of a letter April 18, 1923, from the Milner Company declining to remove said restriction. In the meantime and while this was going on the appellant decided to accept the lot, regardless of the building restriction, and, through her attorneys, notified the appellee's sales agent, who in turn notified the appellee. See letter from Yeatman Company to appellee dated October 18, 1922. There is no question but when this was done both parties considered the matter as alive, and were negotiating for a perfection of the title and, had the title been perfected at this time, there can be no doubt but what the appellee could have compelled the appellant to take the lot, and, as the clause with reference to a merchantable title was inserted for the benefit of the purchaser and not the seller, the former could waive same and the latter could not complain, and when the purchaser waived the defect and agreed to take the property it became the duty of the seller to consummate the sale. It also appears that appellee made no...