West v. Holman
Citation | 134 So. 667,223 Ala. 114 |
Decision Date | 09 April 1931 |
Docket Number | 7 Div. 13. |
Parties | WEST v. HOLMAN ET AL. |
Court | Supreme Court of Alabama |
Rehearing Denied May 21, 1931.
Appeal from Circuit Court, Cherokee County; A. E. Hawkins, Judge.
Bill in equity by Hattie L. Choate West against Charlie Holman and others. From a decree dismissing the bill, complainant appeals.
Reversed and remanded.
E. O McCord & Son, of Gadsden, and Irby Keener, of Center, for appellant.
F. M Savage, of Center, for appellees.
The action of the trial court in sustaining demurrers to the bill as amended, and in the rendition of a final decree, is presented for review.
By reason of the tripartite agreement of sale and the superior title in the mortgagee, and as the sale may affect the first mortgage on the whole tract, an immediate and interlocking interest in the land is presented, and, to the doing of full and complete justice and equity in the premises by the final decree, the whole title should be before the court. There was error in sustaining demurrers (Hodge v. Joy, 207 Ala. 198, 92 So. 171; Marsh v. Elba Bank & Trust Co., 221 Ala. 683, 130 So. 323) to the amended bill.
The prior mortgage is alleged to be due and payable, and further alleged that complainant is ready, able, and willing to take up that incumbrance, but defendants refused to allow this to be done or to have the mortgage transferred to complainant that one of the other defendants by collusion with Holman refused to comply with the terms of sale of a part of the land to him, and thus prevented complainant from getting relief, and that the other purchaser refused to comply with the terms of purchase of the other part of the land bid in by him; that the auction company stood ready, willing, and able to comply with its part of the contract, and that complainant was likewise ready, willing, and able to complete her purchases. It is further alleged that The prayer was for specific performance of the contract, and for general relief.
It was held in Wood v. Master Schools, Inc., 221 Ala. 645, 130 So. 178, that a "suit in equity may be maintained to rescind contract, cancel deed, and order repayment of purchase price for fraudulent representations, where remedy of law is inadequate." It has also been held that, where the complainant did not make out his right to specific performance of an agreement to convey land, the court may retain the bill to do equity by compelling the respondent to restore the value paid, the complainant having an equal equity to recover the compensation paid, and to have reimbursement for improvements made on the land. This was the subject of authorities cited in Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742; 59 A. L. R. 227.
The decisions in this and other jurisdictions are to the effect that, when the vendor refuses and disables himself to perform, his repudiation and unjustifiable attempt to rescind, or his disabling himself to perform, will entitle the vendee to recover the amount he has paid on the purchase price, on the idea that great injustice would be the consequence of not requiring repayment. 59 A. L. R. 257, et seq; Allen v. Booker, 2 Stew. 21, 19 Am. Dec. 33 (suit at law); Mialhi v. Lassabe, 4 Ala. 712 (in equity); Flinn v. Barber, 64 Ala. 193 (at law); Id., 59 Ala. 446 (at law); Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742 (in equity); Aday v. Echols, 18 Ala. 353, 357, 52 Am. Dec. 225 ( ); Irwin v. Bailey, 72 Ala. 467, and Powell v. Higley, 90 Ala. 103, 7 So. 440 ( ); Birmingham Nat. Bank v. Roden, 97 Ala. 404, 11 So. 883; Jones v. Gainer, 157 Ala. 218, 47 So. 142, 131 Am. St. Rep. 52 (in equity).
In Mialhi v. Lassabe, 4 Ala. 712, 714, Mr. Justice Goldthwaite said:
This rule was followed in Irvin v. Irvin, 207 Ala. 493, 93 So. 517, and authorities collected. In Powell v. Highley, 90 Ala. 103, 108, 7 So. 440, 441, Mr. Chief Justice Stone declared:
In Birmingham National Bank v. Roden, 97 Ala. 404, 406, 11 So. 883, the court observed:
It may be said that the general rule in...
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