Morris v. Bailey
| Decision Date | 30 August 1954 |
| Docket Number | 4 Div. 739 |
| Citation | 74 So.2d 447,261 Ala. 281 |
| Parties | S. J. MORRIS v. Cecil D. BAILEY et al. |
| Court | Alabama Supreme Court |
Horton H. Little, Luverne, for appellant.
Sentell & Turner, Luverne, for appellees.
This appeal is from a decree of the Circuit Court of Crenshaw County, Alabama, in Equity, overruling demurrer to a bill seeking specific performance of a contract to sell real estate. The bill also prayed for an injunction and general relief.
In substance, the bill of complaint alleges that the appellees, Cecil D. Bailey and Elsie Jacqueline Bailey, entered into a contract with S. J. Morris, appellant, for the purchase of certain described real estate. The bill alleges that the appellees agreed to pay $5,000 in annual installments over a period of years and at a certain rate of interest for the lands involved. It also alleges that the appellant agreed to execute and deliver a deed to appellees upon the maturity of all installments, provided the appellees had paid the installments, with interest thereon, as they matured. The bill further alleges that appellees had paid a portion of the installments, as they had matured, and avers that they had performed all other things required of them under the terms of the contract, and that appellant had refused to accept an installment due, without excuse or justification, although the installment was tendered on the due date. The bill also alleges that appellees stand ready and willing to pay not only said installment which is due, but also all other installments which are not due, plus interest thereon; further, that appellant is wrongfully and without cause asserting a right of forfeiture contained in the contract, and that appellant has demanded rent from appellees' tenants, or else possession of the premises involved upon noncompliance. The bill by general averment states that the latter conduct on the part of the appellant is causing appellees irreparable injury.
The contract, which was incorporated in and made a part of the bill of complaint, explicitly states that the appellees 'are not authorized nor empowered to pay the * * * principal sum before due date.'
The injunctive relief sought is against appellant's interference with possession of the real estate of the appellees, and as stated, the bill contained a prayer for general relief.
The appellant demurred to the bill as a whole, and to each aspect of the bill, namely, that seeking specific performance, and the aspect seeking injunctive relief. The demurrer was properly framed so as to assign grounds separately and severally to the bill as a whole and to each aspect thereof.
The trial court overruled the demurrer in its entirety. Assignments of error raise the correctness of said ruling as to the bill as a whole, and as to each of the aforementioned aspects.
According to the averments contained in the bill, and accepted as true on demurrer, appellant had no right to declare a forfeiture of the contract.
We are of the opinion that appellees are not entitled to the permanent injunction prayed for. As ground for injunctive relief, appellees' bill merely states that Also, the bill states that 'unless the respondent is restrained by the Court, he will continue to interfere with complainants' possession of said property and will harass the complainants.'
It is clear from the complaint that appellees, complainants in the court below, through their tenants, are still in possession of the premises in question. The bill does not state that appellant has trespassed upon the land, in addition to the alleged interference. It is our opinion, however, that the failure to allege any such trespass does not change the remedy available in the instant case. Even if trespass were averred and proved, as well as the alleged interference, a permanent injunction could not be granted in the absence of further allegations and proof. See Deegan v. Neville, 127 Ala. 471, 29 So. 173. Mere averment that irreparable damage will result will not avail the pleader unless supported by proper charges of facts. Bowling v. Crook, 104 Ala. 130, 16 So. 131.
Should any interference on the part of the appellant occur subsequent to this appeal, and cause injury to the appellees, an action for damages may be prosecuted. Unless...
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In re Health Science Products, Inc., Bankruptcy No. 94-03938-BGC-11. Adv. No. 94-00294.
...title to be transferred before that date, HSP is not, until then, entitled to specific performance. See e.g., Morris v. Bailey, 261 Ala. 281, 283, 74 So.2d 447, 449 (1954) (where contract for sale of land provided that purchasers were not authorized or empowered to pay principal sum before ......
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Crew v. W.T. Smith Lumber Co.
...irreparable injury which will result from the failure or inability of a court of law to redress such rights. * * *' In Morris v. Bailey, 261 Ala. 281, 74 So. 2d 447, 448, this Court 'We are of the opinion that appellees are not entitled to the permanent injunction prayed for. As ground for ......