Spangler v. Barber, 6 Div. 150.

• Decision Date: 13 January 1944
• Docket Number: 6 Div. 150.
• Citation: 17 So.2d 232,245 Ala. 386
• Parties: SPANGLER v. BARBER et al.
• Court: Alabama Supreme Court

17 So.2d 232

245 Ala. 386

SPANGLER v. BARBER et al.

6 Div. 150.

Supreme Court of Alabama

January 13, 1944

Rehearing Denied March 23, 1944.

Hiram Dodd, of Birmingham, for appellant.

Barber & Barber, of Birmingham, for appellees.

BROWN Justice.

Appellees being the owners in fee simple of lots 2 and 3 in block 20 in Coleman's Addition to Green Springs, situated within the corporate limits of the City of Birmingham, on January 12th, 1927, entered into two contracts, one in respect to each of said lots, with one C.M. Harlow, leasing the same to Harlow for a term beginning on the 12th of January, 1927, and ending on the 12th day of May, 1930, for use by him as a stable, horse lot or for gardening or residence, both of said lots then being vacant.

In consideration of which Harlow agreed to pay a rental for said lot No. 2, one thousand dollars, $200 in cash, and the balance of $800, in monthly installments of $20.00 each evidenced by forty simple promissory notes payable in advance on the 12th of each succeeding month, the last maturing May 12th, 1930. And for lot No. 3, a rental of $500, payable $100 in cash, and $10 monthly thereafter, payable in advance on or before the 12th of each month, evidenced by 40 simple promissory notes.

Said notes as to each of said lots, as provided in the "lease-sale contract" bearing "legal interest payable at the office of lessors 2331 3rd Avenue in Birmingham, Alabama."

It was also stipulated in the "lease-sale contract" that "this Lease being terminated, to surrender quiet and peaceable possession of said premises in like good order as at the commencement of said term, natural wear and tear excepted.

"In the event of the employment of an attorney by the party of the first part, on account of the violation of the conditions of this Lease by the party of the second part, the party of the second part hereby agrees that he shall be taxed with said attorney's fee. * * *

"It is understood and agreed that at the end of said term if the party of the second part has complied with each and all conditions of this Lease, then the party of the first part agrees that the rent paid under his Lease shall be considered a payment for said property, and the party of the first part shall make and execute a deed with warranty conveying said property to the party of the second part.

"It is further understood and agreed that if the party of the second part fails to pay the monthly rent as it becomes due and becomes as much as two months in arrears during the first year of the existence of this Lease, or as much as three months in arrears on such payments at any time thereafter, or should fail to pay the taxes on the said property when the same becomes due, or should fail to comply with any condition or requirement therein, then on the happening of any such event by the party of the second part forfeits his rights to a conveyance of said property, and all money paid by the party of the second part under this contract shall be taken and held as payment of rent for said property, and the party of the second part shall be liable to the party of the first part as a tenant for the full term of said Lease, and the provisions herein 'that the rent paid under this Lease shall be considered a payment for said property, and the party of the first part shall make and execute a deed with a warranty of title conveying said property to the party of the second part,' shall be a nullity and of no force or effect; and the failure of the party of the second part to comply with any of the conditions of this instrument shall ipso facto render the said provision a nullity, and make the said party of the second part a lessee under this instrument, without any rights whatever except the rights of lessee without any notice or action whatever upon the part of the party of the first part. * * *."

On April 15th, 1927, Harlow, with the consent of the lessors, assigned the "lease-sale contract" to Spangler, who endorsed each of the unpaid notes, and paid the notes of each series maturing thereafter up to and including the 17th due June 12th, 1928, and defaulted in the payment of the others.

Appellees filed the bill in this case, August 11th, 1942, more than twelve years after the end of the term and the maturity of the last of the notes in each series, against appellant, praying that the court ascertain the amount of the indebtedness evidenced by said unpaid notes, the amount that will be required to redeem the lots from the City of Birmingham, a reasonable solicitor's fee for services in the prosecution of this case, and fix a date for the payment of the aggregate amount of the indebtedness, solicitor's fee and costs, to the Register of the Court.

That the court retain jurisdiction until the amount ascertained by the decree and the costs are paid into the registry of the court, and if the defendant shall make default, that the court order "said lands to be sold according to law in such cases provided the proceeds thereof to apply to the payment of said judgment or decree in full or pro tanto, as the case may be; and that in the event said lands, at said sale thereof, do not bring a sufficient amount to fully satisfy said judgment of this Court, that this Court make and enter its decree of judgment, with waiver of exemptions as to personal property against this defendant and in favor of these plaintiffs for such deficit," and for general relief.

The defendant demurred on grounds among others that the bill is without equity, and on the demurrer being overruled, answered setting up that the debt evidenced by said notes and contract are barred by the statute of limitations.

On final hearing, on submission on pleading and proof, the court entered a decree granting complainants relief. The basis of the relief appears from the following...