Cox v. Lerman, 8 Div. 723

• Citation: 233 Ala. 58,169 So. 724
• Decision Date: 11 June 1936
• Docket Number: 8 Div. 723
• Parties: COX v. LERMAN et al.
• Court: Alabama Supreme Court

169 So. 724

233 Ala. 58

COX v. LERMAN et al.

8 Div. 723

Supreme Court of Alabama

June 11, 1936

Rehearing Denied Oct. 8, 1936

Appeal from Circuit Court, Limestone County; A.A. Griffith, Judge.

Suit in equity by Columbus Cox against E.D. Lerman and another. From a decree dismissing temporary injunction and sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

R.B Patton, of Athens, for appellant.

D.L Rosenau, Jr., of Athens, and E.W. Godbey, of Decatur, for appellees.

BROWN Justice.

This is a bill by an alleged purchaser against the vendor and the sheriff, seeking specific performance of a contract of sale an accounting, and to enjoin the dispossession of the complainant under a writ of possession issued in an action of unlawful detainer, originally filed in a justice of the peace court and removed by the defendants to the circuit court to test the title.

The bill alleges that prior to the 15th day of August, 1917, the defendant E.D. Lerman was the owner of the lands specifically described in paragraph 4 of the bill; that on said date the complainant, by parol contract, purchased said land from the defendant Lerman, agreeing to pay him the sum of $1,000 for the same, and said Lerman agreed to accept said sum in full payment thereof; "that, thereupon, your orator paid to the said E.D. Lerman the full and true sum of fifty ($50.00) Dollars on the payment of said land, and thereupon the said E.D. Lerman accepted said sum of money and put your orator in possession thereof, where your orator has remained from said date until the time of the filing of this bill of complaint;" that during the years intervening between August 15, 1917, and this date, complainant has paid to the defendant Lerman large sums of money, "some of which payments were for the lands so bought as above set out and some was on account; that said E.D. Lerman kept all of the books and accounts and it is impossible for your orator to know exactly the amount he is due the said E.D. Lerman for the balance of the purchase price of said land, or whether there is any sum due; that he has delivered to the said E.D Lerman all of the crops which were produced on said lands, and has paid in other ways produce and other money, and *** has bought various items of merchandise from the said E.D. Lerman on account, and during the eighteen (18) years they have had no settlement, and the accounts are mutual, and the same are complicated and confused."

The bill further avers that the defendant brought a suit of unlawful detainer against the complainant and has obtained a judgment in the circuit court, upon which a writ of possession has issued and is now in the hands of the defendant Wellden, as sheriff of Limestone county, and will be executed and complainant dispossessed unless the defendants are restrained.

The bill further alleges that complainant is ready, willing, and able to pay whatever is found to be due on the purchase money, and offers in his bill to do equity.

Upon the filing of the bill an order was entered directing the register to issue a temporary writ of injunction "upon the complainant entering into a bond, payable and conditioned as required by law, in the sum of $150.00, to be approved by the Register."

The bond was filed and approved and the writ issued on December 21, 1935.

On December 26th, the defendant Lerman appeared and alleged that the bond was insufficient in surety and amount, and moved that the complainant be required to give another bond. This motion was granted, and the bond increased in penalty to $250. The bond was subsequently given and approved on January 11, 1936.

On January 3, 1936, the defendant Lerman filed an answer admitting that on August 16, 1917, he agreed to sell the complainant the land at the alleged price of $1,000, "interest to be charged on said amount at the rate of 8% per annum, payable annually"; that he placed the complainant in possession under said parol contract, and also admits that complainant paid him $50 on said contract. The answer denies that complainant has ever paid anything more on said contract, and alleges, as matter of affirmative defense, that it was agreed between the parties that if the complainant failed to pay the...