Farrow v. Sturdivant Bank

• Decision Date: 18 December 1913
• Citation: 184 Ala. 208,63 So. 973
• Parties: FARROW v. STURDIVANT BANK.
• Court: Alabama Supreme Court

63 So. 973

184 Ala. 208

FARROW v. STURDIVANT BANK.

Supreme Court of Alabama

December 18, 1913

Appeal from Circuit Court, Tallapoosa County; B.B. Bridges, Special Judge.

Action by C.A. Farrow against the Sturdivant Bank, for breach of contract to reconvey land. There was judgment for plaintiff and on motion of defendant the judgment was set aside, from which order plaintiff appeals. Affirmed.

See also, 61 So. 286.

The pleas were a subsequent agreement between the parties to sell the land for as much over $2,500 as possible, the bank to retain $2,500 in payment of its debt, the balance to go to plaintiff, and that after repeated effort, the land could not be sold for more than $2,500, and that defendant was informed of this fact and expressed the satisfaction. The other pleas were that the tender was not made within a reasonable time and not until after land had been sold by defendant, and plaintiff informed and expressed his approval thereof.

George A. Sorrell, of Alexander City, for appellant.

James W. Strother, of Dadeville, for appellee.

ANDERSON J.

The contract or agreement, for the breach of which this suit was brought, is an obligation by a mortgagee to reconvey certain real estate previously mortgaged to the defendant by the plaintiff. The plaintiff having executed to the defendant a deed to the property, in payment of the mortgage debt, after the law day of the mortgage, and for the evident purpose of avoiding a foreclosure sale of the property, and contemporaneous with said conveyance, the defendant executed the agreement involved, authorizing plaintiff to repurchase the property for the same amount expressed as the consideration in the deed, and interest thereon, but no time limit was put on the agreement as to when the plaintiff should or could repurchase. It is a well-settled rule of law that when no time of performance is fixed in a contract, it will-be presumed that the parties intended a performance within a reasonable time, and what is a reasonable time will be determined by the nature and extent of the undertaking and the particular circumstances surrounding the parties when the contract was made. Griffin v. Ogletree, 114 Ala 343, 21 So. 488; Wolfe v. Parham, 18 Ala. 441; 2 Mayfield's Dig. p. 776.

It is evident from the undisputed facts connected with this transaction and the surroundings of the parties that the deed from the plaintiff, the mortgagor, to the defendant, the mortgagee, was for the purpose of avoiding a foreclosure sale of the land under the mortgage, and that the obligation in question was made and intended solely for the purpose of preserving such rights as the plaintiff would have to redeem the property in case it had been sold under the power, and this being true, we think, the law fixes two years as a reasonable time within which the plaintiff had to exercise his right to repurchase or redeem the property under the terms of the agreement. This transaction operated as a sale of the property to the defendant by the plaintiff, with the right to repurchase the same upon payment of the amount credited on the mortgage, as...