Coral Gables, Inc. v. Patterson

• Decision Date: 23 January 1936
• Docket Number: 3 Div. 142
• Citation: 166 So. 40,231 Ala. 649
• Parties: CORAL GABLES, Inc., v. PATTERSON.
• Court: Alabama Supreme Court

166 So. 40

231 Ala. 649

CORAL GABLES, Inc., v. PATTERSON.

3 Div. 142

Supreme Court of Alabama

January 23, 1936

Rehearing Denied March 5, 1936

Appeal from Circuit Court, Escambia County; F.W. Hare, Judge.

Suit in equity by Coral Gables, Incorporated, against H.H. Patterson. From a decree sustaining a demurrer to the bill, complainant appeals.

Affirmed.

Ball &amp Ball, of Montgomery, for appellant.

Stevens McCorvey, McLeod, Goode & Turner, of Mobile, for appellee.

THOMAS Justice.

A bill by Coral Gables, Inc., successor in title to Coral Gables Corporation, for specific performance of an agreement to purchase lots 1 to 7 of block 20 of the Biltmore Section of Coral Gables, according to the plat indicated.

The "Contract for Deed," entered into by complainant's predecessor in title, Coral Gables Corporation, with William A. Kolar, recites: "This Agreement, made and executed in duplicate this 24th day of August, A.D., 1925, by and between Coral Gables Corporation *** as the party of the first part, and William A. Kolar *** as the party of the second part," stipulating that the payments be made in installments, and in the event of payment, "the said first party agrees to convey to said second party by good and sufficient Warranty Deed, free of all incumbrances, other than such as may have been placed thereon by or through said second party, subject however to the conditions, limitations and restrictions hereinafter set out," the lots specifically described. The recited consideration was that of a cash payment and notes payable in monthly installments, extending to August 24, 1928. That agreement as exhibited contained many conditions limitations, and restrictions, which are material as affecting a purchaser in the sale or improvement of the lots to which they apply, and concluded: "This Agreement shall be mutually binding upon the heirs, personal representatives, successors and assigns of the parties hereto, and the term party shall include parties. Time is the essence of this contract." (Italics supplied.) It is further provided, in the agreement of which specific performance is sought, that certain designated remedies were expeditious and suited to the conditions of real estate sales, viz.: (1) Acceleration of the whole debt "recoverable at law" on default of any payment, together with court costs and reasonable attorney's fees incurred in collecting same; (2) that "in case of such default this contract shall become null and void, at the option of the party of the first part, and in event of the exercise of such option to declare the contract null and void, the party of the first part shall have the right to reenter and retake possession of said premises and resell the abovementioned property and all payments that may have been made hereunder previous to such default shall be forfeited to the party of the first part as liquidated damages, to the extent of twenty-five per cent. of the purchase price herein provided for, plus one per cent. per month of such purchase price for each month from date hereof to date of exercise of said option to cancel this contract, plus court costs and reasonable attorney's fees incurred in clearing the title to the property covered hereby, should this instrument be recorded or in any way be made a lien upon said property or cloud upon said title"; (3) that "this contract may be foreclosed in equity in manner provided and customary for the foreclosure of mortgages in said Dade County, and all rights of the party of the second part either at law or in equity pertaining to the property covered hereby or this contract itself may be sold under such foreclosure"; and (4) that "in the event of such foreclosure, the first party may at its option apply for and have appointed by a court of competent jurisdiction, a receiver to take charge of said real estate and of all the rents, incomes and profits therefrom, notice of such application for the appointment of such receiver and service of process in relation thereto being hereby waived by the second party." (Italics supplied.)

It will be noted that some of these reserved rights are unusual; as that stipulating for damages (contrary to our decisions as to specific performance, Fuller et al. v. Totten, 222 Ala. 174, 131 So. 435; Alabama Water Co. et al. v. City of Anniston, 227 Ala. 579, 151 So. 457; Pearce v. Third Ave. Improvement Co., 221 Ala. 209, 128 So. 396), and that for benefit of foreclosure of mortgage according to the Dade county, Fla., rule.

It is insisted by appellee that the ancient maxim, "Expressio unius est exclusio alterius" (Co.Litt. 210a; Black's Law Dictionary, p. 463), would exclude a resort in equity for specific performance; the purchaser not being in possession of the land. Henderson v. Morton, 109 Fla. 300, 147 So. 456. That is, the contract was carefully drawn for expeditious recapture of the land, and did not look to the enforcement of a vendor's rights in a court of chancery by specific performance, with its more deliberate procedure. In 66 C.J. p. 1361, § 1362, note 64, and in Marian Coal Co. v. Peale (C.C.A.) 204 F. 161, 164-166, it is stated that remedies available only because of the contract and stipulated therefor are exclusive as indicated by the expressed intent of the parties. Fidelity Ins., etc., Co. v. Lichten, 11 Pa.Dist.R. 517, 28 Pa.Co.Ct.R. 17. This view is strengthened by the rule in this court that a vendor is not entitled to specific performance of an agreement to sell land for the collection of principal and interest, and also for damages for the purchaser's failure to perform as per contract stipulations. Fuller et al. v. Totten, 222 Ala. 174, 131 So. 435; Pearce et al. v. Third Ave. Improvement Co., 221 Ala. 209, 128 So. 396; Alabama Water Co. et al. v. City of Anniston, 227 Ala. 579, 151 So. 457. However, this court has held that a contract stipulating that payments made on default will be treated as rentals and not defeat specific performance. George E. Wood Lumber Co. v. Morris et al., 225 Ala. 281, 142 So. 508.

The "Contract for Deed" purports to have been assigned on December 18, 1925, by William A. Kolar and wife to H.H. Patterson. The assignment contained the following:

"This assignment will be delivered upon the payment of the note for $11,000 due ninety days from December 11, 1925, and the payment of the note for $11,000 due one hundred twenty days from December 11, 1925. Also upon the payments of the ten notes for $766.13 each and one note for $766.18, which are paid in eleven consecutive quarterly payments, first payment becoming due February 24, 1925.

"Now, therefore, this indenture witnesseth, That the said assignor for and in consideration of the sum of Ten Dollars ($10.00) this day received by him, and other valuable considerations does hereby sell, assign, transfer and set over unto the assignee herein, the above recited agreement for deed and all the right, title and interest of the said assignor in and to the said agreements for deed and in and to the lands therein and herein particularly described.

"To have and to hold the same unto the said assignee, his heirs, executors, administrators and assigns forever; subject, nevertheless, to the terms, conditions and stipulations in said agreements contained.

"And the said assignee herein hereby covenants and agrees with the assignor that he will pay the balance of the said purchase price now remaining unpaid under said agreements for deed, and in the manner provided in said agreement, and will observe and perform all the terms, conditions and stipulations in the said agreement mentioned which are thereunder by the party of the second part therein to be observed and performed, and will save harmless and keep indemnified the said assignor herein against all claims, demands and actions by reason of the failure of the said assignee herein to observe and perform all the conditions of said agreements."

Though recorded as provided for such an instrument, its terms indicate that it was not to be held as an effective delivery to Patterson until the several stipulated payments were made to William A. Kolar--on or before January, 1926.

Appellant insists upon the rule that in a proper case a vendor may enforce payment of the purchase price in a bill for specific performance, and the fact that the land is in another state is no objection, if both parties are within the jurisdiction of the court (George E. Wood Lumber Co. v. Morris et al., 225 Ala. 281, 142 So. 508); and such remedy is enforceable by and against privies in the contract. Goodlett v. Hansell, 66 Ala. 151; Taylor v. Newton et al., 152 Ala. 459, 44 So. 583; Donald v. Reynolds, 228 Ala. 513, 154 So. 530.

Chandler v. Bodeker, 219 Ala. 357, 122 So. 435, held the necessary pleading for a bill for specific performance must show a valid and enforceable contract exists, terms thereof, due performance by complainant on his part, or sufficient excuse for nonperformance, accompanied with averments showing complainant's ability and willingness to perform, and that a due and seasonable offer to perform was made on his part up to the time of the purchaser's refusal to carry out the contract. Fuller et al. v. Totten, 222 Ala. 174, 131 So. 435.

It is averred that in June, 1929, a successor to Coral Gables Corporation (the original payee of Kolar), Coral Gables Inc., became the owner of the contract and promissory notes referred to in the pleading, and is the owner thereof and of said lots 1 to 7, block 20, Biltmore Section of Coral Gables, subject to the rights therein of said Kolar and Patterson, as set forth in said contract for deed, to which we have referred; that its demand for payment was made and refused, and its final demand was made and documents tendered to invest respon...