Emond v. Robison

• Decision Date: 14 May 1925
• Docket Number: 6 Div. 304
• Citation: 213 Ala. 150,104 So. 323
• Parties: EMOND v. ROBISON.
• Court: Alabama Supreme Court

104 So. 323

213 Ala. 150

EMOND v. ROBISON.

6 Div. 304

Supreme Court of Alabama

May 14, 1925

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

Bill for specific performance by B.C. Robison against W.B. Emond and the Jefferson County Building & Loan Association. Decree for complainant, and respondent Emond appeals. Affirmed.

Clifford Emond and Davis & Locke, all of Birmingham, for appellant.

Clarence Mullins, Edgar Allen, Jas. K. McVey, and Frank Bainbridge all of Birmingham, for appellee.

GARDNER J.

This appeal is prosecuted by the appellant W.B. Emond, from a decree against him in favor of the appellee B.C. Robison awarding specific performance of a contract for the sale of certain real estate described in the bill. The contract of sale was verbal, but complainant was placed in possession by respondent, and paid a portion of the purchase money, thus taking the case out of the influence of the statute of frauds, and rendering the contract specifically enforceable in a court of equity. Penney v. Norton, 202 Ala. 690, 81 So. 666; Penney v. Lyle, 205 Ala. 476, 88 So. 580.

Complainant purchased the property as a home, and, at the time of the agreement, was in the employ of the grocery firm of W.B. Emond & Son, a partnership composed of respondent and his son, the purchase price being $1,000. There was a mortgage on the property, with a balance due of $447.87, to the Jefferson County Building & Loan Association, payable in monthly installments, which complainant assumed, there being several monthly installments on the mortgage indebtedness past due at that time. Complainant was placed in possession, and remained thereon several years, making 36 monthly payments on the mortgage indebtedness, and making certain designated improvements on the property. He was, however, in arrears as to some of the monthly installments when he obtained a purchaser for the property, and offered to pay in full the balance remaining due on the purchase price, which he insists he had a right to do, and which was not questioned by respondent, if complainant had not forfeited his purchase by reason of his defaults in these payments. Respondent declined to accept the payment of the balance due, and to execute a deed, unless complainant would also pay his indebtedness to the firm to W.B. Emond & Son. It is not pretended that this latter requirement formed a part of the agreement of purchase, and, upon complainant declining this proposition, respondent refused to execute the deed and accept the balance due. Hence this litigation.

Respondent insists relief should be denied complainant upon the ground he was in arrears as to some of the monthly payments on the mortgage indebtedness. It is the general rule that, in equity, time is not regarded as of the essence of...