Neal v. Williams

• Decision Date: 02 February 1910
• Citation: Neal v. Williams, 168 Ala. 310, 53 So. 94 (Ala. 1910)
• Parties: NEAL ET AL. v. WILLIAMS ET AL.
• Court: Alabama Supreme Court

53 So. 94

168 Ala. 310

NEAL ET AL. v. WILLIAMS ET AL.

Supreme Court of Alabama

February 2, 1910

Rehearing Denied June 30, 1910.

Appeal from Chancery Court, Pike County; A. H. Alston, Chancellor.

Bill by George Neal and another against M. E. Williams and others. From a decree sustaining a demurrer to the bill, complainants appeal. Reversed.

Foster Samford & Carroll, for appellants.

E. R Brannen and J. M. Chilton, for appellees.

DOWDELL C.J.

On the first appeal in this case, taken from the decree of the chancellor overruling a motion to dismiss the bill for want of equity, it was held that the bill was not without equity when considered as amended, on a motion to dismiss, as the rule required, and the decree appealed from was affirmed. Williams v. Neill, 147 Ala. 691, 40 So. 943. On the second appeal, which was prosecuted from a decree on demurrer to the bill, it was held that the bill was subject to demurrer, and the decree was reversed, and the cause remanded. 152 Ala. 435, 44 So. 551. After remandment of the cause, the bill was amended, and, as amended, again demurred to; and from the decree sustaining the demurrer the present appeal is prosecuted.

By the amendment the bill is constituted one primarily for the specific performance of a contract; and the question of the abatement of the purchase money price of the land, on the ground of actual fraud, is made ancillary thereto. The bill as amended fully met the objections and defects pointed out by this court in the opinion on the second appeal. 152 Ala 435, 44 So. 551. Under the averments of the bill as amended it is plainly shown that the complainants are without a remedy at law as to the abatement of the purchase price of the land as a defense at law in action by the respondents. The terms of the contract, upon the refusal of the complainants to pay the balance of the purchase money, left it optional with the respondents in the bill to annul the contract, thereby enabling them to hold the land, and at the same time retain the money already paid them by the complainant. The bill as amended, and praying for a specific performance and to have abatement of purchase price, on the facts alleged, was not subject to any of the grounds of demurrer assigned. Bell v. Thompson, 34 Ala. 633; Pomeroy on Contracts (2d Ed.) §§ 438, 449. Conceding that the complainants might have had their action at law to recover the money paid, on the grounds...