Milton Realty Co. v. Wilson

• Decision Date: 14 January 1926
• Docket Number: 6 Div. 540
• Citation: 214 Ala. 143,107 So. 92
• Parties: MILTON REALTY CO. et al. v. WILSON et al.
• Court: Alabama Supreme Court

107 So. 92

214 Ala. 143

MILTON REALTY CO. et al. v. WILSON et al.

6 Div. 540

Supreme Court of Alabama

January 14, 1926

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

Bill in equity by Lana Wilson and Lula Wilson against the Milton Realty Company and George Tribble. From a decree for complainants, respondents appeal. Affirmed.

Ritter Wynn & Carmichael, of Birmingham, for appellants.

Edgar Allen, of Birmingham, for appellees.

THOMAS J.

The bill had for its purpose specific performance on the abatement of the purchase price of real property, and an accounting between the parties, and prayed for general relief.

The bill is sufficient as against demurrer urged, and entitles complainants to relief, averring, as it does readiness, willingness, and ability to perform as to what is found just and right in the premises (Blackburn v. McGlaughlin, 202 Ala. 434, 80 So. 818; Simmons v Henderson, 207 Ala. 692, 93 So. 624; Enslen v Woodlawn, etc., Co., 210 Ala. 40, 97 So. 80), in view of its allegations that complainants had paid a large part of the purchase price, and made valuable improvements in the property as their home, and that respondents were unable to convey all the property contracted to be conveyed, for the reason that they did not own the 13 feet in question ( Elliott v. Boaz, 9 Ala. 772, 779; 5 Pom.Eq., p. 4980, § 2231). The amendment to the bill, to the effect that respondents had been called upon for performance and refused that request, was sufficient in a court of equity, in view of the deficiency in front footage and damage to complainants in virtue of having made valuable improvements and paid a large part of the purchase price, as averred in the bill as originally filed. Manning v. Carter, 192 Ala. 307, 68 So. 909; same case, 201 Ala. 218, 77 So. 744; Bell v. Thompson, 34 Ala. 633; Hart v. McClellan, 41 Ala. 251; Carter v. Thompson, 41 Ala. 375; Carlisle v. Carlisle, 77 Ala. 339. Moreover, in a bill for specific performance on grounds stated, and to relieve against forfeiture of the nature indicated by the contract exhibited, no demand for performance, or for part performance, is required. Ala. Pub. Serv. Com. v. Mobile Gas Co. (Ala.Sup.) 104 So. 538; Neal v. Williams, 168 Ala. 310, 53 So. 94.

The evidence, taken ore tenus in open court, does not disclose that complainants had knowledge of the deficiency or defect in the title of respondents, or had notice thereof when they purchased the property, partly paid for it, and improved it as a home. The court had all the evidence as to the respective values of the two tracts, and was enabled to compute and declare by the decree rendered the fair value of the abatement. Ray v. Watkins, 203 Ala. 683, 85 So. 25; Andrews v. Grey, 199 Ala. 152, 74 So. 62. The purchasers, having paid about $800 on the purchase price, made valuable improvements on the property, and occupied it as a homestead before knowledge or notice of the failure of title of the sellers to 13 of the 38-foot frontage, were entitled as a matter of right to specific performance of whatever interest the sellers have, upon complainants' compliance with their part of the contract, as ascertained by a court of equity. Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742; 5 Pom.Eq., p. 5042 et seq., § 2256.

The bill avers that $800 of the purchase price has been duly paid pursuant to the contract, and it was of easy ascertainment as to what rebate should be given concerning the failure of title to the 13 feet as related to the other property and its value. In a case like this, where complainant is ready, willing, and able to comply with a decree of a court of equity, and where an award of abatement is prayed after accounting as to the respective rights of the parties under the sale lease contract to avoid the disastrous forfeitures provided by the contract (Ala. Pub. Serv. Com. v. Mobile Gas Co. [ Ala.Sup.] 104 So. 538), a court of equity is the only proper forum to adjust the rights and equities of the parties. Oppression and injustice will not be worked upon the defendant by the decree made the basis of the appeal ( Tombigbee Co. v. Lumber Co., 155 Ala. 575, 587, 47 So. 88; Lowery v. May [Ala.Sup.] 104 So. 5).

The measure of damages is the difference...