Jones v. Hert
| Decision Date | 15 April 1915 |
| Docket Number | 576 |
| Citation | 68 So. 259,192 Ala. 111 |
| Parties | JONES v. HERT et al. |
| Court | Alabama Supreme Court |
Appeal from Probate Court, Dallas County; P.H. Pitts, Judge.
A petition by Roger ap C. Jones, as administrator of the estate of Roxie Hert, deceased, seeking to sell land to pay a debt was contested by Henderson Hert, alias, etc., and others. From a decree dismissing the petition, petitioner appeals. Reversed, rendered, and remanded.
This appeal is prosecuted from a decree of the probate court of Dallas county denying and dismissing a petition filed by the appellant, as administrator of the estate of Roxie Hert deceased, seeking a sale of a lot of land owned by and in possession of decedent, when she died, to pay a debt of decedent. The decree adjudged and found that the claim, for payment of which it was sought to sell the land, was not a charge against the estate, and for that reason petition was denied and dismissed. The claim was filed by the Mabry Securities Company under the following contract:
Received of Roxie Hert $25 as part payment on a lot in Selma Alabama [here follows description of lot], which said Hert has agreed to purchase for $1,250, same to bear interest at the rate of 8%. Roxie Hert agrees to prorate the taxes and insurance for the year 1911, and to pay Mabry Securities Company her share of same during the continuance of this contract, and to have all buildings on said property insured and failing therein, the securities company may do so in her place, and charge same against the contract. Said Roxie Hert is to pay the purchase price at the rate of $15 on the 19th day of each month, commencing in September, 1911, and if the same is not paid, for a period of three months next after default as aforesaid, all payments made at the time of the default shall go as rent of said premises up to that time. [ Here follows same provisions as to payment of taxes on insurance.]
In consideration of full payment the securities company was to execute good and sufficient deed to said land. Upon the delivery of the contract, the securities company put Roxie Hert in possession of the lot described in the contract. All payments made by Roxie Hert left a balance of at least $900 due on said lot. The lot sought to be sold for the satisfaction of the claim was not the lot embraced in the contract, but was another lot owned by Roxie Hert at the time of her death.
Partridge & Hobbs, of Selma, for appellant.
W.W. Quarles, of Selma, for appellees.
The portion of the contract providing that after a default in the payment of any installment of the purchase price, and a failure, within three months thereafter, to pay up all past dues, all money paid was to go as rent, and the instrument was to become "null and void," was in no sense an option to the vendee to abandon the contract and defeat her unconditional promise to pay the purchase price of the lot, but was intended for the purpose of giving the vendor some remuneration for the land in case of a default in the purchase-money installments. Therefore, the obligation on the part of the vendee to pay the purchase price of the lot being unconditional and not optional, the words "null and void," as used in the contract, meant that the sale should be voidable at the election of the vendor in case of a default by the vendee. Stewart v. Griffith, 217 U.S. 323, 30 Sup.Ct. 528, 54 L.Ed. 782, 19 Ann.Cas. 639; Wilcoxson v. Stitt, 65 Cal. 596, 4 P. 629, 52 Am.Rep. 310; Nelson v. Sanders, 123 Ala. 615, 26 So. 518. This right of the vendor to terminate the contract could be, and was, waived by an acceptance of several payments upon the purchase price as such, after the claimed default, and which were made within a very short time previous to the death of the said vendee. Purchase money due from a deceased vendee upon a valid contract of sale is such a debt of the decedent as the representative may rightfully pay. 18 Cyc. 418; Probasco v. Cook, 39 Mich. 714.
To continue reading
Request your trial
-
McCain v. Cox, DC 80-10-WK-P.
...at the election of the nondefaulting party. E.g., Burns Mortgage Co. v. Schwartz, 72 F.2d 991, 992 (3 Cir. 1934); Jones v. Hert, 192 Ala. 111, 68 So. 259, 260 (1915); Metropolitan Life Ins. Co. v. Hall, 191 Ga. 294, 12 S.E.2d 53, 61 (1940); Marshall v. Porter, 73 W.Va. 258, 80 S.E. 350 (191......
-
Murray v. Edes Mfg. Co.
...Cook, 67 F.2d 144. Burns Mortgage Co. Inc. v. Schwartz, 72 F.2d 991. American Surety Co. v. United States, 112 F.2d 903, 906. Jones v. Hert, 192 Ala. 111, 113, 114. Cotterill v. Hopkins, 180 Ga. 179, 180. v. North American Life Ins. Co. 226 Iowa, 314, 318. Alexander v. Wingett, 63 Mont. 254......
-
Summers v. Wright
... ... unconditional promise to pay at a given date as disclosed by ... his notes. In 2 Jones on Mortgages (8th Ed.) § 1515, holding ... to this view, is cited Cox v. Kille, 50 N.J.Eq. 176, ... 24 A. 1032, 1033, which sustains the text, and ... Like reasoning was applied by this court concerning the ... relation of vendor and vendee in Jones v. Hert, 192 ... Ala. 111, 68 So. 259, and was in harmony with that of the ... Supreme Court of the United States in Stewart v ... Griffith, 217 U.S ... ...
-
Gorr Lumber Co. v. McMillan, 1 Div. 713.
... ... right upon the maker to change his unconditional contract by ... reason of his own default. Jones v. Hert, 192 Ala ... 111, 68 So. 259; Wood Lumber Co. v. Morris (Ala ... Sup.) 142 So. 508; 8 Corpus Juris 417; Walter v ... Kilpatrick, 191 ... ...