Cay v. Ferrell

• Decision Date: 28 March 1940
• Docket Number: 7 Div. 611.
• Parties: CAY v. FERRELL.
• Court: Alabama Supreme Court

195 So. 224

239 Ala. 297

CAY v. FERRELL.

7 Div. 611.

Supreme Court of Alabama

March 28, 1940

Appeal from Circuit Court, DeKalb County; A. E. Hawkins, Judge.

Bill for specific performance of a contract to convey real property by F. L. Ferrell against Florence G. Cay. From a decree overruling a demurrer to the bill, respondent appeals.

Reversed and remanded.

C. A Wolfes, of Fort Payne, for appellant.

W. Jay Tindle and W. M. Beck, both of Fort Payne, for appellee.

FOSTER Justice.

The question here involved is the sufficiency of a bill in equity, tested by the demurrer assigned, in which there is sought to be specifically enforced an alleged contract to buy a certain hotel together with "improvements, furnishings", etc., at the suit of the buyer who was put in possession under the contract.

The contract is alleged to be as follows:

"Mentone, Alabama, June 9, 1938.

"Florence G. Cay hereby agrees to sell, and F. L. Ferrell and wife Nina Ferrell, hereby agree to purchase the following described real estate, on terms stated below:

"Property known as Riverside Hotel together with improvements, furnishings; etc., consisting of 15 or more acres, with buildings.

"The purchase price is to be $5500.00 payable $ as earnest money and part of the purchase price, receipt of which is hereby acknowledged, and the remainder payable to assume a certain first mortgage of $500.00 payable to the Bank of Rome, May 1939 and the remainder $5000.00 as follows: Said F. L. Ferrell and wife agree to pay 6% interest from date on the $5000.00, said interest to be paid July 15, 1939, and each year thereafter until paid.

"Said F. L. Ferrell and wife agree to make necessary repairs to comply with the State Board of Health.

"F. L. Ferrell also agrees to assume balance of approximately $150.00 on refrigerator and approximately on $40.00 on electric heater.

"Deferred payments to be secured by ______.

"Sale subject to lease expiring , 19--.

"The seller is to furnish abstract of title brought down to date, said title to be good and merchantable, otherwise the earnest money is to be refunded. Taxes for current year to be

"Property to be conveyed by warranty deed.

"The trade is to be closed within days.

"Purchaser to assume all fire and tornado insurance on property at pro rata rates.

"Possession to be given.

__________, Agent.

"Accepted: Florence G. Cay, Seller.

"Accepted: F. L. Ferrell and wife, Nina Ferrell, Purchaser."

Appellant, who was the seller, and whose demurrer was overruled, contends, first, that the contract is so uncertain and indefinite in same respects that it is not subject to be specifically enforced; that it leaves material matter for future negotiation, and does not sufficiently describe the property, nor show the maturity of the deferred payments.

There are several features left blank, but they do not indicate that they were to be filled by future negotiation. In treating the sufficiency of the contract, we will take it as written, with the blanks in it.

The first is as to the amount of the earnest money. We think the contract as a whole shows that none was to be paid. The next is the manner in which the deferred payments were to be secured. We take it that there was no agreement for their security. Likewise, that if there was an outstanding lease the sale was subject to it, though the date of its expiration is not stated. And that as to the taxes for the current year and date on which the trade was to be closed, there was no stipulation, but were subject to applicable principles of law. There is analogy in this respect to the contract held to be subject to specific performance in McCarty v. Harris, 216 Ala. 265, 113 So. 233, and to that treated in Matthews v. Bartee, 209 Ala. 25, 95 So. 289. See on this subject 25 R.C.L. 219, section 18.

Objection is also made to the sufficiency of the description of the property in the sale agreement, particularly as to the personalty. But we think it refers to the hotel as improved, equipped and furnished. And the description is aided by the fact alleged in the bill that the property was put into the possession of the purchaser. That circumstance has been held to make specific such a general description. Penney v. Norton, 202 Ala. 690 (4), 81 So. 666.

When a judgment or decree is for the recovery of land, the generality of the description and aid to be given it by extraneous matter is a subject which has had much discussion in our cases. The case of Bradford v. Sneed, 174 Ala. 113, 56 So. 532, has been modified or explained in later cases. Lessley v. Prater, 200 Ala. 43, 75 So. 355; Pippin v. Perry, 206 Ala. 582, 91 So. 307; Riddle v. Hanson, 208 Ala. 474, 94 So. 729.

But whether there is any proper distinction in this respect between the sufficiency of a description in a deed and one in a judgment for the recovery of land, it would seem on reason that the remedy of specific performance is in its essence more akin in this respect to a deed than to a judgment in ejectment. It is said in Rushton v. McKee, 201 Ala. 49, 77 So. 343, that all that complainant could ask would be that the contract be specifically enforced by compelling respondents to convey the property described in the contract.

We also observe that it does not seek an execution or writ of possession, nor does it call upon the sheriff to exercise any diligence in locating the property. The complainant is already in its possession. The description may well be tested by the rule applicable to deeds. Indeed, this Court has so treated the situation. Minge v. Green, 176 Ala. 343, 58 So. 381; Howison v. Bartlett, 141 Ala. 593, 37 So. 590; Id., 147 Ala. 408, 40 So. 757.

Again it is claimed that the bill does not show a present right to a specific performance because it does not show that complainant has fully paid the purchase money. It alleges that complainant has at all times stood ready and willing to carry out the terms of the contract but that ...