George E. Wood Lumber Co. v. Morris

• Decision Date: 19 May 1932
• Docket Number: 4 Div. 604.
• Citation: 225 Ala. 281,142 So. 508
• Parties: GEORGE E. WOOD LUMBER CO. v. MORRIS ET AL.
• Court: Alabama Supreme Court

142 So. 508

225 Ala. 281

GEORGE E. WOOD LUMBER CO. v. MORRIS ET AL.

4 Div. 604.

Supreme Court of Alabama

May 19, 1932

Rehearing Denied June 23, 1932.

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

Bill for specific performance of contracts for sale and purchase of real estate by the George E. Wood Lumber Company against D. H. Morris, Jr., W. H. Morris, Jim Johnson, Jr., and William Holloway. From a decree sustaining a demurrer to the bill, complainant appeals.

Reversed and remanded.

J. N Daniel, of Chipley, Fla., and T. E. Buntin, of Dothan, for appellant.

E. C Boswell, of Geneva, and Carter & Pierce, of Mariana, Fla for appellees.

FOSTER J.

A vendor of real estate may maintain a bill for specific performance against his purchaser. Melton v. Stuart, 213 Ala. 574, 105 So. 659; Fuller v. Totten, 222 Ala. 174, 131 So. 435; Eaton v. Sadler, 215 Ala 161, 110 So. 10. And the fact that the land is situated in another state is not an objection to such relief if the parties are within the jurisdiction of the court. Hume v. Kirkwood, 216 Ala. 534, 113 So. 613; Hall v. Milligan, 221 Ala. 233, 128 So. 438, 69 A. L. R. 618.

Complainant and respondents entered into a contract by which the former agreed to sell, and the latter agreed to buy, land in Florida, and to pay the purchase price in certain installments stated in the contract. By it the respondents agreed to pay the taxes and assessments, in default of which complainant could do so, and thereby respondents became indebted to complainant in the amount so paid. But it is also provided that, if the purchasers shall make default in respect to the covenants and agreements, which shall continue sixty days, this contract shall become, and is thereby made, a lease between the parties.

The purchasers are alleged in the bill to have made such default, and which continued sixty days. The court sustained a demurrer to the bill, because the facts alleged show that the contract became a lease, and that complainant could not have its performance as a contract of sale. The correctness of such interpretation of the contract is the only question argued by counsel on this appeal.

In the case of Nelson v. Sanders, 123 Ala. 615, 26 So. 518, and Davis v. Folmar, 203 Ala. 336, 83 So. 60, the court was dealing with contracts similar to this in that respect. In both cases it was held that such default changed the status of the parties, ipso facto, and required no affirmative action on the part of the vendor. But in both those cases the vendor was claiming the benefit of the changed relation, whereas in this case the purchaser is making such claim. In the former case it was said that whether an option given to the purchaser to elect whether he will pay the purchase money in installments and continue as a purchaser or that he will by his own choice become a tenant was not asserted and was not treated.

In Collins v. Whigham, 58 Ala. 438, there was a somewhat similar contract considered. The seller executed her bond to make good the title in said land to the purchaser upon his paying the annual installments. The purchaser executed several promissory notes for the annual purchase-money installments, and on the back of each he wrote an agreement that, if the note is not paid as purchase money the purchaser is only to pay a stipulated rent. He did not execute a contract to...