Harris v. Johnson

Decision Date18 April 1912
Citation58 So. 426,176 Ala. 445
PartiesHARRIS v. JOHNSON.
CourtAlabama Supreme Court

Appeal from Chancery Court, Tallapoosa County; W. W. Whiteside Chancellor.

Suit for specific performance by B. D. W. Harris, administrator against R. L. Johnson, administrator. From the judgment plaintiff appeals. Reversed and remanded.

Frank W. Lull, of Wetumpka, for appellant.

Lackey & Bridges and James W. Strother, of Dadeville, for appellee.

SAYRE J.

This bill was filed by J. W. Harris against A. J. Brummit as executor of the last will and testament of W. A. Brummit deceased; its prayer being for the specific performance of a contract entered into by complainant and defendant's testator, by which testator agreed to convey to complainant a certain tract of land upon the payment of an agreed purchase price. Payments were to be distributed over a number of years, pending which testator died. Complainant conceded a balance due, but averred a tender, and offered to pay same as a condition of relief. Defendant denied that complainant was entitled to specific performance on the ground that payments to be made under the contract were still in arrear, and that the amount tendered was not equal to the balance due. He also made his answer a cross-bill asking that the true balance be declared an equitable lien and the property sold for its satisfaction. Pending the hearing complainant died, and the original defendant was removed from his executorship. Revivor was had in the name of complainant's administrator against decedent's administrator de bonis non cum testamento annexo. What disposition, if any, the will made of the property does not appear.

On August 12, 1910, a decree was rendered, on submission for final decree on pleading and proof, dismissing the original bill, decreeing cross-complainant's right to relief, and ordering a reference to ascertain the amount due on the purchase price of the land. November 11, 1910, a decree was rendered overruling exceptions to the register's report confirming the report, and ordering a sale of the land. The appeal bond, taken and approved May 11, 1911, recites an appeal from a decree rendered at the November term, 1910, of the chancery court. The register's certificate shows an appeal from the "decree in said cause." On this state of the record appellee construes the appeal as taken from the decree of November 11, 1910, contends that the decree of August, 1910, was the final decree in the cause, and that on this appeal the decree of August, 1910, cannot be reviewed. The decree of August was a final decree and would have supported an appeal. Garry v. Jenkins, 109...

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15 cases
  • Gill v. More
    • United States
    • Alabama Supreme Court
    • 14 Junio 1917
    ... ... the judgment is void, notwithstanding the averment of the ... necessary jurisdictional facts ( Whitlow v. Echols, ... 78 Ala. 206, 210; Johnson v. Johnson, 40 Ala. 247, ... 253), and also that, where a given party is not dead, but is ... averred so to be, the letters of administration ... definite averment of parties respondent, a decree cannot be ... rendered against definite parties of the class of heirs or ... devisees. Harris v. Johnson, 176 Ala. 445, 58 So ... 426; Smith v. Murphy, 58 Ala. 630; Winn v ... Fitzwater, 151 Ala. 171, 44 So. 97 ... It is ... ...
  • Hodge v. Joy
    • United States
    • Alabama Supreme Court
    • 10 Noviembre 1921
    ... ... consequences to the parties, and seizes upon slight ... circumstances to declare a waiver. Root v. Johnson, ... 99 Ala. 90, 10 So. 293; Hamilton v. Terry F. & L. Co ... (Ala. Sup.) 91 So. 489; Franklin v. Long, 191 ... Ala. 310, 68 So. 149; 1 Pom ... be changed from an absolute to a conditional title without ... giving them an opportunity to be heard; in Harris v ... Johnson, 176 Ala. 445, 58 So. 426, the bill was specific ... performance of a contract made by a deceased vendor; the ... title, passing ... ...
  • Carter v. Mitchell
    • United States
    • Alabama Supreme Court
    • 19 Mayo 1932
    ... ... final decree rendered more than six months before the appeal ... was taken-such is the rule in this state. Harris v ... Johnson, 176 Ala. 445, 58 So. 426; Coker v ... Coker, 208 Ala. 239, 94 So. 308; United States S. & ... L. Co. v. Leftwich, 132 Ala ... ...
  • Pate v. State
    • United States
    • Alabama Supreme Court
    • 22 Abril 1943
    ... ... to Court of Appeals ... [14 So.2d 252] ... [244 ... Ala. 397] Wm. N. McQueen, Acting Atty. Gen., and John O ... Harris and George C. Hawkins, Asst. Attys. Gen., for the ... petition ... Tom ... B. Ward, J. Monroe Ward, and Foster, Rice, Madison & ... ...
  • Request a trial to view additional results

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