Mooney v. Weaver, 2 Div. 322

• Decision Date: 24 March 1955
• Docket Number: 2 Div. 322
• Parties: Cora Lee MOONEY et al. v. Edith V. WEAVER.
• Court: Alabama Supreme Court

Page 3

79 So.2d 3

262 Ala. 392

Cora Lee MOONEY et al. v. Edith V. WEAVER.

2 Div. 322.

Supreme Court of Alabama.

March 24, 1955.

Sam Earle Hobbs & Graham Kirkpatrick, Selma, for appellants.

Pitts & Pitts, Selma, for appellee.

MAYFIELD, Justice.

This is an appeal from a final decree of the Circuit Court of Dallas County, Alabama, in equity.

On December 11, 1944, appellee, as lessor, and Cora Lee Mooney and N. O. Mooney, as lessees, entered into a lease contract for a certain tract of land in Dallas County, Alabama. The lease was for a period of five years beginning on January 1, 1945, at an annual rental of $400, the first annual payment due on March 1, 1945, and a payment of equal amount due on January 1 each year thereafter throughout the term of the lease. Lessees gave to appellee their five promissory waive notes evincing said rentals. The contract provided that if the lessees failed to pay such notes as they matured that appellee, at her option, might declare the lease null and void and might enter upon and take possession of the premises. The lease contract contained a further clause granting the lessees an option to purchase the tract of land for $6,000 at any time all rent notes were paid and before December 1, 1949.

Cora Lee Mooney and N. O. Mooney went into possession of the premises and remained in uninterrupted possession throughout the term. On several occasions, during the term of the lease, the lessees failed to make payment of rent on the date due. On the occasion of each default appellee later accepted payment in full of the past-due rent and took no steps to exercise her option to terminate. Cora Lee Mooney and N. O. Mooney did not exercise their option to purchase before December 1, 1949.

On December 30, 1949, appellee entered into a new written lease contract with appellants. This contract was identical in terms to the prior contract, except that N. A. Mooney was added as a lessee, and the purchase price was increased to $6,500 in the purchase option clause. The new lease was to begin on January 1, 1950, and to end on December 1, 1954. Cora Lee Mooney and N. O. Mooney remained in uninterrupted possession and N. A. Mooney went into possession for the first time under the contract of December 30, 1949.

On January 1, 1951, appellants failed to pay the rent note in the amount of $400 which was due on that date. On April 4, 1951, appellee instructed her attorney, the Honorable Harry W. Gamble, to write appellants concerning the past-due rent. Mr. Gamble communicated with Cora Lee Mooney and N. O. Mooney by mail on that date and insisted that the Mooneys see him at once about the payment of the note so there would be no forfeiture. On April 7, 1951, N. O. Mooney made a partial payment of $200 directly to the appellee. The payment was accepted and appellee told appellants to pay the balance as soon as they could, or words to that effect.

In April or May, 1951, appellee proposed to N. O. Mooney that she refund the partial payment, give him a reasonable time to get off the place and that he give her back the contract. N. O. Mooney made a counter proposal that he pay in full the balance under the contract but made no tender. According to Mr. Mooney's testimony, appellee replied: 'I can get a lot more money than that for it' and said, 'let me go back and talk to Frank [G. Frank Cothran, Jr.] and I will drop you a card.'

On May 12, 1951, G. Frank Cothran, Jr., the nephew of appellee, notified appellants by mail that he was handling appellee's properties. On July 13, 1951, appellee gave to Mr. Cothran, a written power of attorney to handle all business in connection with this realty. Mr. Cothran testified that during July, August and September he wrote several letters to one of the appellants concerning the past-due rent, to which letters he received no reply. On December 18, 1951, pursuant to instructions from Mr. Cothran, Pitts and Pitts, attorneys for appellee, notified appellants by mail that the contract had been placed in their hands, that appellants had failed to pay the rent due under the contract, and demanded that appellants surrender possession of the premises on January 1, 1952, and pay the accrued rent. The form of this letter from attorneys for appellee substantially complied with provisions of Code of 1940, Tit. 31, § 6, concerning notice to quit for breach or default of terms of lease. A few days thereafter, N. O. Mooney and N. A. Mooney met with attorneys for appellee and G. Frank Cothran, Jr. Messrs. Mooney were informed that the contract of December 30, 1949, was terminated and void and that appellee would take possession on January 1, 1952. N. O. Mooney expressed the opinion that since preparations had already been made for the 1952 crops, it would be unfair to terminate the lease. G. Frank Cothran, Jr., offered to enter into a new lease with appellants for one year only. The evidence is in dispute as to whether Messrs. Mooney both agreed to the proposal. Attorneys for appellee subsequently prepared the proposed new lease and submitted a copy to the appellants. Appellants did not then execute the contract and have since refused to do so.

On January 2, 1952, appellants paid $380 to attorneys for appellee and on January 14, 1952, made another such payment of $220. Appellants contend that these amounts represent payment of the balance due for 1951, and advance payment of rent for 1952, under the contract of December 30, 1949, which continued in effect. Appellee contends that the amount paid in advance was paid under the new one-year lease, the contract of December 30, 1949, having been terminated.

On May 16, 1952, appellee filed a bill of complaint in the Circuit Court of Dallas County, in Equity, praying for a declaratory judgment concerning the status of the parties under the contract of December 30, 1949. Appellants filed demurrers, answer, cross-bill in response thereto, and G. Frank Cothran, Jr. was made a cross-respondent in the cross-bill which contained allegations that he wrongfully urged and induced appellee to terminate the contract.

Appellants' demurrers were overruled and on motion of G. Frank Cothran, Jr., and appellee, Cothran was stricken as a party cross-respondent. On January 14, 1953, the cause was heard on its merits and submitted for final decree. On February 16, 1953, the court handed down its decree declaring that the lease and option were terminated, null and void. It was from that decree that this appeal was taken.

We first consider appellants' contention that appellee having an adequate remedy at law, there was no equity in the bill and demurrer thereto should have been sustained. Appellants rely on previous cases wherein it was held that a declaratory judgment is not ordinarily available if another remedy exists which affords adequate relief. L. W. Richardson & Co. v. Town of Hamilton, 248 Ala. 585, 28 So.2d 924; Goltsman v. American Life Ins. Co., 248 Ala. 151, 26 So.2d 596; Donoghue v. Bunkley, 247 Ala. 423, 25 So.2d 61; Gambill v. Greenwood, 247 Ala. 149, 22 So.2d 903; Glass v. Prudential Ins. Co. of America, 246 Ala. 579, 22 So.2d 13; State v. Louis Pizitz Dry Goods Co., 243 Ala. 629, 11 So.2d 342; State v. Inman, 238 Ala. 555, 191 So. 224. By amendment of October 9, 1947, the following was added to Code 1940, Tit. 7, § 167:

'The remedy provided for by this article shall not be construed by any court as an unusual or extraordinary one but shall be construed to be an alternative or cumulative remedy.'

Appellants further insist that the amendment constitutes an exercise of judicial powers by the Legislature in violation of the Constitution of 1901, Art. 3, § 43.

Since the enactment of the 1947 amendment, this court has held that relief under the Declaratory Judgments Act does not depend on the absence of another adequate remedy. Dozier v. Troy Drive In Theatres, 258 Ala. 417, 63 So.2d 368; Wolff v. Woodruff, 258 Ala. 1, 61 So.2d 69; Brantley v. Flowers, 254 Ala. 448, 48 So.2d 532. We view the amendment as a further enlargement of the scope of the court's powers under the Act. As such, it does not impinge on the powers reserved to the judiciary by the Constitution.

In Alabama State Milk Control Board v. Graham, 250 Ala. 49, 33 So.2d 11, it was held that if a complaint states the substance of a bona fide justiciable controversy which should be settled, a cause of action for a declaratory judgment is stated, and demurrer thereto should be overruled. The...