Allison v. Forehand

• Decision Date: 04 April 1929
• Docket Number: 2 Div. 935.
• Citation: 121 So. 532,219 Ala. 170
• Parties: ALLISON ET AL. v. FOREHAND.
• Court: Alabama Supreme Court

121 So. 532

219 Ala. 170

ALLISON ET AL. v. FOREHAND.

2 Div. 935.

Supreme Court of Alabama

April 4, 1929

Appeal from Circuit Court, Sumter County; T. J. Bedsole, Judge.

Bill for specific performance of contract by H. A. Allison and R E. Allison, partners under the firm of Allison Brothers against W. C. Forehand. From a decree dismissing the bill complainants appeal. Affirmed.

Thos F. Seale, of Livingston, for appellants.

Patton & Patton, of Carrollton, for appellee.

BROWN, J. (after stating the facts as above).

In dealing with deeds granting timber rights, limiting the time within which the timber may be removed, and providing for extension of the time for removal of the timber, it is settled here that a demand for extension accompanied by sufficient tender must be made during the existence of the first period. W. T. Smith Lumber Co. v. Kate C. Waller et al. (Ala. Sup.) 119 So. 663; Murphy v. Schuster Springs Lumber Co., 215 Ala. 412, 111 So. 427.

Appellants, however, insist that appellee's absence from the state is a good excuse for not making the tender at an earlier date and within the life of the original grant; and that a tender within a reasonable time after the expiration of the first five years should be treated as sufficient.

While the absence of the party to whom tender is to be made from the state may be recognized as an excuse for failure to make a tender in person, and authorize a tender through the mails, or by filing a bill accompanied by tender and the payment of the money into court, it cannot excuse a tender within the life of the first grant, where, as here, time is of the essence of the contract. Murphy v. Schuster Springs Lumber Co., supra; Beebe v. Buxton, 99 Ala. 117, 12 So. 567; Beatty v. Brown, 101 Ala. 695, 14 So. 368; W. T. Smith Lumber Co. v. Waller, supra.

We do not mean to hold that if the tender had been timely it was sufficient. The stipulation in the contract is that the extension will be granted " at and for the price of fifty dollars a year for a term of five years from the expiration of the contract as above mentioned." In this respect the stipulation is different from that considered in Murphy v. Schuster Springs Lumber Company, supra. There the stipulations were: "Said timber to be cut and removed from said lands within five years from the date of this conveyance, with the option and privilege of extending this contract for not exceeding three years...