Sewell v. Peavey

• Decision Date: 04 June 1914
• Docket Number: 541
• Parties: SEWELL v. PEAVEY et al.
• Court: Alabama Supreme Court

65 So. 803

187 Ala. 322

SEWELL v. PEAVEY et al.

No. 541

Supreme Court of Alabama

June 4, 1914

Appeal from Chancery Court, Elmore County; W.W. Whiteside Chancellor.

Bill by M.A.E. Peavey and others against N.B. Sewell, to specifically perform. From a decree overruling demurrer to the bill complainants appeal. Affirmed.

The bill alleges briefly the making of a bond for title by Sewell to complainant to certain land described in the bill and in the bond attached upon complainants executing to defendant three promissory notes, aggregating $519.26; that complainants executed the notes and respondent executed bond for title to convey the land in fee simply with general warranty, and respondent put complainants in the actual possession of said land, and they have been in possession ever since, and are still in possession. The bill avers payment in full of the notes when due, and has requested respondent to make and deliver proper deeds, and that he declines to do so on the ground that there is some yet due and that the bond is out of date; the bond is dated April 15 1898, and the bill was filed December 8, 1913. The demurrers raise the question discussed in the opinion.

J.A. Holmes, of Elmore, and W.H. & J.R. Thomas, of Montgomery, for appellants.

C.E.O. Timmerman, of Prattville, and F.W. Lull, of Wetumpka, for appellee.

SAYRE J.

Appellant in brief points out some defects in the form of the bill which need not be considered, since they were not pointed out by the demurrer.

The bill, which seeks to have a deed executed in pursuance of the contract between the parties, avers payment of the agreed purchase price. Appellant seems to urge that the bill should allege payment precisely when due, not later. But if appellant accepted payment when past due, he waived the default, and must now execute the consideration upon which the payment was made and accepted. This is plain equity.

If complainants have been in possession all the while, as they allege the case to be, they might, without conceivable hurt or wrong to defendant, defer their bill indefinitely. Nor could their delay, in these circumstances, be construed as an abandonment of their right to have the legal title. Complainants being in possession, limitation, laches, and prescription were running in their favor and against defendant. The burden of action was on defendant.

The rule that the bill must be construed against the pleader does...