Forrester v. Granberry

• Decision Date: 01 May 1924
• Docket Number: 4 Div. 118.
• Citation: 100 So. 551,211 Ala. 402
• Parties: FORRESTER v. GRANBERRY.
• Court: Alabama Supreme Court

100 So. 551

211 Ala. 402

FORRESTER v. GRANBERRY.

4 Div. 118.

Supreme Court of Alabama

May 1, 1924

Rehearing Denied June 5, 1924.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Bill in equity by J. B. Granberry against A. H. Forrester for specific performance of a contract to convey lands. From a decree denying motion to set aside service and overruling demurrers to the bill, respondent appeals. Affirmed.

See also, 210 Ala. 172, 97 So. 619.

Sayre J., dissenting in part.

F. M Gaines, of Dothan, for appellant.

Farmer Merrill & Farmer, of Dothan, for appellee.

GARDNER J.

Bill by appellee against appellant for the specific performance of a contract for the sale of land, and from a decree overruling the demurrer to the bill respondent has prosecuted this appeal.

A preliminary question is argued. The bill alleged the respondent is a nonresident, giving his address in the state of Georgia, and service was had by mailing [registered mail] the summons and complaint and a copy of the bill to such address; and the certificate appears showing that the same was duly receipted for. The respondent filed a motion to have this service set aside upon the ground he was not a nonresident but a resident of Houston county, and respondent also filed demurrers to the bill. The chancellor was of the opinion that proceeding to a hearing upon the demurrer, without insisting upon the motion, was a waiver of any rights under the motion; and that the filing of the demurrer amounted to an appearance for all practical purposes. In the denial of the motion we concur, though we may add, parenthetically, it is doubtful if this question is reviewable upon appeal from an interlocutory decree, from which the appeal is prosecuted.

The contract for the sale of the land is in the form of a bond for title, duly executed by the respondent, which is made an exhibit to the bill. The purchase price was $4,000. $2,000 of which was payable in cash, and the balance due in installments at future dates therein stipulated. The contract bears date November 8, 1919, and the last installment was due November 1, 1921. The bill was filed in November, 1923, and shows that the $2,000 cash payment was made, and avers that the complainant is ready, willing, able and offers to pay the balance of the purchase price with the interest thereon, as may be determined by the court, and submits himself to the jurisdiction of the court, together with an offer to abide by any of its decrees.

The bill fails to allege, however, that the complainant had previously offered to respondent the balance of the purchase money, and it is insisted by counsel for appellant that for this reason the bill was subject to demurrer.

The general rule is that in equity time is not regarded as of the essence of the contract. Isom v. Johnson, 205 Ala. 157, 88 So. 543. Clearly there is nothing in the contract here under consideration manifesting an intent of the parties that time should be of its essence. Under these circumstances it has been the well-established rule of this court, at least since the case of Ashurst v. Peck, 101 Ala. 499, 14 So. 541, that it is not essential to the maintenance of a bill for specific performance that the complainant (vendee) offer to perform or tender a deed before filing the bill. A failure to do so affects only the question of costs. Eason v. Roe, 185 Ala. 71, 64 So. 55; Enslen v. Woodlawn Realty, etc., Co., 210 Ala. 40, 97 So. 80; Zirkle v. Bell, 171 Ala. 568, 54 So. 1000; Blackburn v. McLaughlin, 202 Ala. 434, 80 So. 818.

Under the above-cited authorities, therefore, the demurrer taking this point was properly overruled.

The bill in its fourth paragraph alleges that the respondent has remained in possession of the land since the date of the contract, and an accounting is sought for the ascertainment of the amount of rent due to the end that the said respondent be charged with the rent received, and that the same be deducted from the balance of the purchase price. As previously noted, these installments were past due and unpaid at the time of the filing of the bill.

It is insisted by counsel for appellant that the bill does not show the respondent accountable for the rents. The pleader has, however, failed to properly present the question for determination. It is only raised by making it one of the assignments of demurrer; but the demurrer is addressed to the bill as a whole. To properly present the question the pleader should have demurred to so much of the bill as sought the accounting rather than to the whole bill.

However, in view of the further progress of the cause, we have deemed it proper to state our views concerning the point here sought to be presented. In the bond for title the respondent agreed to convey upon the payment of the sum of money when due, and is silent upon the question of possession as well as that of rent. The question of rents should of course relate to the right of possession of the property.

Upon original consideration of this cause the writer was of the opinion, and so wrote for the court, that under the contract in question possession was to change from the vendor to the purchaser upon completion of the contract-the full payment of the purchase price....