Gatewood v. Hughes

• Decision Date: 13 May 1926
• Docket Number: 4 Div. 244,244A
• Parties: GATEWOOD v. HUGHES et al.
• Court: Alabama Supreme Court

108 So. 562

214 Ala. 674

GATEWOOD v. HUGHES et al.

4 Div. 244, 244A

Supreme Court of Alabama

May 13, 1926

Rehearing Denied June 10, 1926

Appeal from Circuit Court, Covington County; W.L. Parks, Judge.

Bill in equity by B.T. Gatewood against J.E. Hughes, W. Inabinett and the Home Underwriters' Department, Home Insurance Company of New York, and cross-bill by respondent insurance company against respondent Inabinett. From a decree dismissing the original and cross-bills, complainant and cross-complainant appeal. Affirmed on direct and cross appeals.

J.D Bailey, of Florala, for appellant.

Steiner Crum & Wiel and Powell & Albritton, all of Montgomery, for cross-appellant.

G.W Reeves, of Florala, and E.O. Baldwin and J.M. Prestwood, both of Andalusia, for appellees.

BOULDIN J.

The bill is in the nature of one for specific performance of an executory contract for the sale of lands on long-term installments, with stipulation that time is of the essence of the contract, and, upon default in payment of installments, the contract, at the option of the vendor, is to be forfeited, and all payments made to be retained as liquidated damages.

That forfeitures are not favored in equity, and may be waived by continued recognition and receipt of part payments after ground of forfeiture, is a well-recognized equitable doctrine. The doctrine is subject to general equitable principles in cases of specific performance; the relief will not be awarded where, under the facts of the case, it would in itself be inequitable. Franklin v. Long, 191 Ala. 310, 68 So. 149; Zirkle v. Ball, 171 Ala. 572, 54 So. 1000; Root v. Johnson, 99 Ala. 90, 10 So. 293; Stewart v. Cross, 66 Ala. 22.

We find it unnecessary to determine the application of these rules to the facts of this case for the following reason: The chief value of the property was in a hotel building located thereon. Before the filing of the bill, it was destroyed by fire. Without conflict, the lot, with remaining improvements is far less in value than the amount of purchase money, taxes and assessments remaining unpaid, and whose payment is a necessary condition precedent to relief. Hence the only equity of value to complainant rests upon that feature of the amended bill alleging that the successor to the rights of the vendor under the contract caused the building to be burned for the insurance he had taken thereon, and praying that this waste or reduction...