Wade v. Robinson

• Decision Date: 31 March 1927
• Docket Number: 5 Div. 960
• Citation: 113 So. 246,216 Ala. 383
• Parties: WADE v. ROBINSON et ux.
• Court: Alabama Supreme Court

113 So. 246

216 Ala. 383

WADE v. ROBINSON et ux.

5 Div. 960

Supreme Court of Alabama

March 31, 1927

Rehearing Denied June 15, 1927

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Bill in equity by C.W. Wade against W.C. Robinson and Geneva Robinson. From a decree sustaining a demurrer to the bill complainant appeals. Reversed and remanded.

J Osmond Middleton, of Clanton, for appellant.

Grady Reynolds and O.L. Reynolds, both of Clayton, for appellees.

GARDNER J.

Appellant filed this bill for specific performance of a contract of purchase of a certain house and lot in Clanton, Ala., which contract was approved by this court in Robinson v Wade, 212 Ala. 698, 103 So. 920. Under the decree of the court below in this former litigation the sums to be paid and the dates of such payments were fixed, and many monthly installments of $100 each therein provided.

The bill, as amended, alleges a payment of $600 to the vendor W.C. Robinson and to the register under decree of the court for said Robinson of $2,821.86. The notes bear interest, and it is insisted that the bill was prematurely filed, in that there was yet remaining unpaid a small sum at the time the bill was filed, but not then due. Construing the bill most strongly against the pleader, we think this insistence is correct, and this brings us to a consideration of the pivotal question in the case. The contract contained the following provisions as to insurance upon the house:

"Should said Wade purchase said lot, he is to assume payment of taxes for 1923 and later years. Also insurance from date of purchase to be assumed by said Wade, and payment of policy to go to said W.C. Robinson in case of fire in such amount as is required to satisfy balance due said Robinson for purchase price with interest. *** Said Wade to keep property of said Robinson insured in favor of said Robinson until indebtedness is paid, or said Robinson may do so and add cost of same to purchase price of lot."

And the former decree of the court as to such contract provided for the payment by this complainant of the several installments, all taxes, "and the maintenance by complainant of policy or policies of insurance against loss by fire of any improvements of said property payable to defendant as his interest may appear, or in lieu of such insurance the payment by said complainant to defendant of such sums as may be expended by defendant in procuring and maintaining such insurance." The amended bill avers that defendant W.C. Robinson elected on May 15, 1923, to take out insurance upon the property in the sum of $1,500; the premium therefor being paid by complainant to the register for the benefit of said defendant, as was required under the contract and former decree of the court. The property was destroyed by fire on July 15, 1923, and complainant alleges that the insurance thereon was rendered uncollectable by reason of the neglect on said defendant's part to truly state the interest of himself and complainant in the property, and that defendant has thus breached his contractual obligation to protect complainant's interest therein. The bill seeks credit for the $1,500, alleged to be lost to complainant, and a decree over for any remaining sum.

If complainant was entitled to such credit, very clearly, under the terms of the contract so providing, the bill was not prematurely filed, and all payments completed. We think the principle is very generally recognized that a mortgagee (the vendor under this contract occupying similar position--Fire Ins. Co. v. Brooks, 131 Ala. 614, 30 So. 876) who agrees to place insurance on the property mortgaged must act in good faith and must use reasonable care. This principle was given application in Boyce v. Loan Ass'n, 218 Pa. 494, 67 A. 766, 11 Ann.Cas. 934, where it was held that, when a mortgagee who has received for his protection an assignment from the mortgagor of a policy of fire insurance on the...