Bessemer Coal, Iron & Land Co. v. Bullard

• Citation: 111 So. 5,215 Ala. 433
• Decision Date: 13 January 1927
• Docket Number: 6 Div. 781
• Court: Supreme Court of Alabama
• Parties: BESSEMER COAL, IRON & LAND CO. v. BULLARD.

111 So. 5

215 Ala. 433

BESSEMER COAL, IRON & LAND CO. v. BULLARD.

6 Div. 781

Supreme Court of Alabama

January 13, 1927

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

Bill in equity by J.M. Bullard against the Bessemer Coal, Iron & Land Company. From a decree overruling demurrer to the bill respondent appeals. Affirmed.

Percy Benners & Burr, of Birmingham, for appellant.

W.A Weaver and Theodore J. Lamar, both of Birmingham, for appellee.

SAYRE J.

Appellee, intending to purchase a lot in or near the city of Bessemer, on April 7, 1923, entered into a contract with appellant of the kind commonly designated as a lease sale contract. The contract provided that appellee should pay rent at the rate of $5 a month, with interest on deferred payments, and, if at the end of 116 months he had paid each installment, appellant would execute and deliver to him a warranty deed without further consideration. It was provided in the written contract that-- "If any of said monthly installments are not paid within sixty days after the same become due, *** then this lease shall terminate at once, and all rights of the party of the second part (appellee) hereunder shall cease; *** it being expressly agreed that all sums paid hereunder are for the rent of said land, and for no other purpose. Any waiver on the part of the party of the first part of its right to forfeit this lease for any default shall not be a waiver of its right to forfeit the same for any subsequent default."

Appellee was to pay all taxes and assessments for "municipal or county improvements." Appellee made payments as follows: April 7, 1923, $5; May 19th, $5; September 8th, $5; October 6th, $5; June 24, 1924, $50; July 1st, $5. On August 1, 1924, appellee tendered $5, which appellant refused to receive, and then, on August 18, 1924, appellant undertook to declare a forfeiture, offering to return to appellee $55 of the money he had paid, but appellee refused to accept. Appellee in his bill offers to pay all installments as they become due; prays for a decree of specific performance, or other such relief as may be meet and equitable.

According to the facts averred in the bill, and they are accepted as true on demurrer, appellant had no right to declare a forfeiture at the time when it undertook to do so. Appellee's payments had been made at irregular times, with more than a month elapsing between payments, and not always in the sums stipulated; but appellee in one way or another had made all payments due prior to August 1, 1924, and such payments had been accepted by appellant, the last being made on July 1, 1924, and, in any event, appellant was not entitled under its contract to declare a forfeiture until 60 days had elapsed after a default in any payment. It may be inferred that appellant's offer to refund $55 of the amount paid was based upon the notion that the time elapsing between the payments made on October 6, 1923, and June 24, 1924, entitled it to declare a forfeiture upon returning $55, which included payments made June 24, and July 1, 1924. If so, appellant misconceived its rights in the premises. By accepting the payments of the two latest dates appellant continued to treat the contract as a continuing obligation, and had no right to declare a forfeiture as and when it did. Zirkle v. Ball, 171 Ala. 568, 54 So. 1000; Stewart v. Cross, 66 Ala. 28.

Appellee's bill as a bill for specific performance was prematurely...