Williams v. Neal

• Decision Date: 19 April 1906
• Citation: Williams v. Neal, 147 Ala. 691, 40 So. 943 (Ala. 1906)
• Parties: WILLIAMS ET AL. v. NEAL ET AL.
• Court: Alabama Supreme Court

40 So. 943

147 Ala. 691

WILLIAMS ET AL. v. NEAL ET AL.

Supreme Court of Alabama

April 19, 1906

Appeal from Chancery Court, Pike County; W. L. Parks, Chancellor.

"Not officially reported."

Action by George Neal and others against W. L. Williams and another.From a judgment overruling a motion to dismissthe bill, defendants appeal.Affirmed.

Brannen & Gardner, for appellants.

Foster, Samford & Carroll, for appellees.

DOWDELL, J.

The bill in this case is filed by a purchaser in the possession of land under a contract of sale and purchase, and seeks an abatement of the purchase price on the ground of fraud and misrepresentation in the sale and a specific performance of the contract to convey.A motion was made by the respondents to dismiss the bill for want of equity, which was overruled by the chancellor, and from the chancellor's decree overruling the motion this appeal is prosecuted.

The question is, not whether the bill was defective, and for that reason open to demurrer, but, taking the bill as amended in all amendable defects, does it present a case for equitable relief on the facts stated?The functions of a demurrer and of a motion to dismiss are very different.Blackburn v. Fitzgerald,130 Ala. 584, 30 So. 568;Seals v. Robinson,75 Ala. 368.The law is well settled that a purchaser may have an abatement of the purchase price of land on the ground of fraud and misrepresentations by the vendor in the sale of the land.Coleman v. Bank,115 Ala. 307, 22 So. 84;Franke v. Riggs,93 Ala. 252, 9 So. 359;Joseph v. Seward,91 Ala. 597, 8 So. 682;Tedder v. Steele70 Ala. 347;Thweatt v. McLeod,56 Ala. 375.

The relation of the parties under the contract set out in the bill in this case, until forfeiture is declared, is in equity one of sale, as if by proper conveyance of title to the purchaser, with an equitable mortgage to secure the purchase money.Hester v. Hunnicutt,104 Ala. 282, 16 So. 162.The bill here shows that the purchaser went into possession of the land under the contract and put valuable improvements on the same, and in terms avers the fraud and misrepresentations practiced by the vendor in the sale and the injury and damage done the purchaser.We are of opinion that the bill contains equity, and the decree appealed from will be affirmed.

Affirmed.

WEAKLEY, C.J., and HARALSON and DENSON, JJ., concur.