Kirkland v. O'Kelly

• Decision Date: 07 June 1928
• Docket Number: 6 Div. 959
• Citation: Kirkland v. O'Kelly, 218 Ala. 68, 117 So. 420 (Ala. 1928)
• Parties: KIRKLAND v. O'KELLY.
• Court: Alabama Supreme Court

117 So. 420

218 Ala. 68

KIRKLAND v. O'KELLY.

6 Div. 959

Supreme Court of Alabama

June 7, 1928

Rehearing Denied June 28, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Ejectment suit by Wister J. Kirkland, as executor of the will of Louisa M. Trover Kirkland, deceased, against Joe O'Kelly transferred to equity side of the court. From the decree plaintiff (respondent in equity) appeals. Affirmed.

Rudulph & Smith, of Birmingham, for appellant.

David J. Davis, of Birmingham, for appellee.

BROWN J. (after stating the facts as above).

The soundness of the decree, in so far as it compels specific performance of the contract, is not seriously questioned. It is too clear to permit of controversy that Kirkland individually, being the sole legatee under the will of the vendor, to whom the legal title passed, was not only a proper but a necessary party to the suit. 25 R.C.L. 326, § 143; Morgan v. Morgan, 2 Wheat. 290, 4 L.Ed. § 242; Hickey v. Dole, 66 N.H. 336, 29 A. 792, 49 Am.St.Rep. 614; Owings' Case, 1 Bland (Md.) 370, 17 Am.Dec. 311.

The burden of appellant's argument goes to the amount of the purchase money ascertained by the decree to be due under the contract, his contention being "that interest on the purchase price should be calculated from the time appellee went into possession, or at least from the time the chancery court's decree was rendered in September, 1920, if not from the date of the contract."

"As a general rule, the purchaser is to be charged with interest from the time the purchase money should have been paid, under the terms of the contract. And this is ordinarily true where the purchaser is let into possession and no provision is made in the contract for a delay in its execution, though the failure to complete the contract is due to the fault of the vendor." 27 R.C.L. 537, § 271; Arrington v. Blackwell, 207 Ala. 314, 92 So. 902; Bright v. James et al., 35 R.I. 128, 85 A. 545, Ann.Cas.1915B, 1099.

It is also the law that, in the absence of stipulations to the contrary, every contract for the sale of real estate implies that a good title will be made. Baker v. Howison, 213 Ala. 41, 104 So. 239, 52 A.L.R. 1452.

Under the contract in this case the vendor obligated herself to furnish an abstract showing a good and merchantable title, and stipulated that "the delivery of deed will be made by authorized sale for division of said property through the court, and the purchaser will occupy said premises as a tenant and will pay $35 per month as rent until such time (as) the court grants a deed, said $35 to be applied on the purchase price on delivery of deed."

Interpreting the contract in the light of the facts surrounding the parties when it was made, considering the occasion which gave rise to it, the relation of the parties, and the object to be accomplished, it is clear that the deal was to be closed and the cash payment made when the vendor was in position to deliver a deed conveying a good and merchantable title, and until that time the vendee was to occupy the premises as a tenant of the vendor. McGhee et al. v....