Enslen v. Woodlawn Realty & Development Co.

• Decision Date: 14 June 1923
• Docket Number: 6 Div. 892.
• Citation: Enslen v. Woodlawn Realty & Development Co., 210 Ala. 40, 97 So. 80 (Ala. 1923)
• Court: Alabama Supreme Court
• Parties: ENSLEN v. WOODLAWN REALTY & DEVELOPMENT CO.

97 So. 80

210 Ala. 40

ENSLEN v. WOODLAWN REALTY & DEVELOPMENT CO.

6 Div. 892.

Supreme Court of Alabama

June 14, 1923

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

Bill for specific performance by S. C. Enslen against the Woodlawn Realty & Development Company. From a decree sustaining demurrer to the bill, complainant appeals. Reversed rendered, and remanded.

Roy McCullough and James A. Mitchell, both of Birmingham, for appellant.

Smith Wilkinson & Smith, of Birmingham, for appellee.

SOMERVILLE J.

The bill of complaint is filed by the vendee to compel the specific performance of a contract for the sale of land.

The bill exhibits a valid and enforceable contract for the sale of the land in question, and shows that it was the property of the vendor at the time he agreed to sell it to complainant; it shows that the complainant has been at all times ready, willing, and able to perform every obligation resting upon himself under the terms of the contract; and it offers to do complete equity, and to submit and conform to all orders of the court in the premises.

Though some of our early cases were more exacting, it is now well settled that a bill for specific performance by a vendee of land, containing those allegations and showings, is sufficient as against demurrer and entitles the complainant to relief. Jenkins v. Harrison, 66 Ala. 345, 352 353; Ashurst v. Peck, 101 Ala. 499, 509, 14 So. 541; Zirkle v. Ball, 171 Ala. 568, 54 So. 1,000; Taylor v. Newton, 152 Ala. 459, 44 So. 583; Campbell v. Lombardo, 153 Ala. 489, 44 So. 862; Eason v. Roe, 185 Ala. 71, 64 So. 55.

In this case the bill goes further than was required, and shows an offer by the vendee "within a reasonable time" to pay the balance of the purchase money, and to assume the outstanding mortgage indebtedness in any way required by the vendor; and shows that the vendor refused to perform.

There is no presumption that the outstanding mortgage has been foreclosed, and the title rendered unconveyable. If such is the fact, it is defensive matter and must be set up by way of answer.

The mere fact that the bill is filed five years, one month, and twelve days, after the execution of the contract of sale does not show laches on the part of the vendee in the enforcement of the contract, so as to render the bill demurrable on that ground. "In a case where the charge of laches rests upon delay only, and that delay appears on the face of the bill to have been short of the period of limitation, the reason of...