Mitchell v. Walker, 7 Div. 489

• Decision Date: 10 March 1938
• Docket Number: 7 Div. 489
• Citation: 179 So. 633,235 Ala. 458
• Parties: MITCHELL et al. v. WALKER.
• Court: Alabama Supreme Court

179 So. 633

235 Ala. 458

MITCHELL et al. v. WALKER.

7 Div. 489

Supreme Court of Alabama

March 10, 1938

Appeal from Circuit Court, De Kalb County; A.E. Hawkins, Judge.

Suit in equity by J.W. Walker against H.R. Rogers and V.N. Mitchell for specific performance of a contract. From a decree for complainant, respondents appeal.

Reversed and rendered.

Isbell & Beck and C.A. Wolfes, all of Fort Payne, for appellants.

Scott &amp Dawson, of Fort Payne, for appellee.

FOSTER Justice.

This is a bill in equity filed by appellee against appellants Mitchell and Rogers, and seeks the specific performance of a contract which he made with Rogers on January 2, 1935, by which he was to have a conveyance from Rogers of one hundred acres of land described, on the terms stated.

The bill alleges that Rogers had contracted with the Federal Land Bank for the rent with an option to purchase two hundred acres, by which he was to pay an annual stipulated sum for three years (which aggregated 20 per cent. of the purchase price) as rent; and when paid, the bank agreed to execute a deed to him, and receive a mortgage for the balance of the purchase price.

Walker agreed to make a cash payment of $300. This he made in an acceptable way. He was also to pay on November 1, 1935, and on November 1, 1936, stipulated sums, respectively. Those were the dates when Rogers was due to make payments to the bank. Rogers agreed to make a deed when he received one from the bank. There was in the contract with Walker no clause providing for a forfeiture for nonpayment, nor making time of its essence. Walker paid the $300 during the first of 1935, and when the installment due November 1, 1935, matured, Walker and Rogers each paid $100 to the bank. That was not all that Walker was due Rogers on that day, nor all that Rogers was due the bank on that day. That made a total sum of $400 paid by Walker. He alleges that he was then at the time of filing the bill ready, willing, and able to make the payments, but that Rogers secured a sum of money from Mitchell which he paid to the bank and procured a deed from the bank (and executed a deed to Mitchell conveying the two hundred acres, including that embraced in Walker's contract), and that Mitchell had notice of Walker's contract. He also offers to do equity. Rogers and Mitchell answered the bill, and incorporated a demurrer in it.

After the testimony was taken a final decree was entered in which also the demurrers were overruled, and relief was granted to Walker against Mitchell and Rogers specifically performing the contract. They appeal and assign as errors the ruling on demurrer and decree granting relief.

The demurrer raises the point argued here that the bill does not allege a tender of the amount due by Walker before filing the bill.

The general rule is that a tender before filing the bill is not necessary as a condition precedent to such relief, and that it is not subject to demurrer in that respect if it alleges a present ability and willingness to pay, and offers to submit to the jurisdiction of the court. Ashurst v. Peck, 101 Ala. 499, 14 So. 541; Zirkle v. Ball, 171 Ala. 568, 54 So. 1000; Cudd v. Wood, 205 Ala. 682(11), 89 So. 52. Especially is this so when the vendor has sold the land to another as here. Rice v. Rice, 199 Ala. 672, 75 So. 21; Coley v. English, 209 Ala. 688, 96 So. 909.

There may be a different rule when time is of the essence of the contract, and a tender at the time stipulated is necessary to prevent a forfeiture. Pearce v. Third Ave. Imp. Co., 221 Ala. 209, 128 So. 396; Davis v. Folmar, 203 Ala. 336, 83 So. 60; Nelson Sanders, 123 Ala. 615, 26 So. 518; Penney v. Burns, 226 Ala. 273, 146 So. 611.

The bill seems to meet the requirements of the cases which we have cited.

Appellant also contends that the court cannot command a specific performance, when the right is dependent upon the consent of a third person not shown to have consented. Burgin v. Sugg, 204 Ala. 270, 85 So. 533.

Our answer to that is that although the contract between the bank and Rogers was that the latter should not sublet any portion of the land without the consent of the bank, the failure to do so was a matter on which the bank only could insist; and it is not making such claim so far as the pleadings show. Another is that the lease which contained that stipulation had been superseded by a deed to Rogers, not shown to contain any such requirement. It cannot, therefore, be a hindrance in the enforcement of a contract between Walker and Rogers.

The chief defense relied on is the claim that, on November 1 1935, when Walker was due to make a payment, and when Rogers was due one to the bank, and when they each paid only $100, Walker was not ready, able, and willing to pay the balance he owed, either then or thereafter; and that when Rogers was later notified that unless he made his payment by January 28, 1936, he would forfeit his rights under the contract, he notified Walker that such was the situation; and that Walker told him that he did not intend to pay more, but that Rogers could borrow from some one else the money necessary to pay the bank. ...