101 Ala. 499 | Ala. | 1893
On the 22d day of November, 1886, W. T. Burney and wife, for the cash consideration of four thousand, two hundred and fifty dollars, sold and conveyed by deed to A. B. Peck the lands described in the bill. The bill avers that the purchase was negotiated by, and was really made for the benefit of, Charles F. Ashurst, who was the son-in-law of Peck, the latter agree
It is objected, by way of demurrer to the bill, that the relief sought can not be had by this complainant, for that the conveyance to Lehman, under the foreclosure sale, and his conveyance to complainant, are void for maintenance, because, upon the facts averred, which we have substantially set forth above, A. B. Peck, or his administrator, must he held to have then had possession of the land adversely to Lehman, Durr & Co. and Lehman. We are of opinion that the presumption, upon the facts as we find them stated, is that the possession .taken and held by Peck and his administrator, when the occupancy of Chas. F. Ashurst was terminated by his death, was in subordination to the equitable title of the latter’s mortgagees and Lehman claiming under them, until the refusal of the administrator to perform the contract took place. Upon entering into the contract of sale by Peck with Chas. F. Ashurst, equity treated Peck, the vendor, as the owner of the purchase money, and as trustee of the legal title to the land for the use of Ashurst, the vendee, and for his, the vendor’s, security in the collection of the purchase money, by virtue of the lien which equity raises, in the nature of a mortgage, in favor of the vendor who retains in himself the legal title;
It is argued by the appellees that the bill does not set forth, with sufficient certainty, the terms of the contract of purchase, in that it fails to show when the purchase money to be paid by Ashurst was payable. We have seen that the written agreement stipulates that Peck would convey when Ashurst “pays or causes to be paid” the purchase money; and further, that the contract was based on a note then executed by Ashurst, and another note he would thereafter execute covering the purchase money. The only reference in the bill to these notes is the averment that complainant does not know whether they were ever executed or not; and aside from this there is no averment when the contract was to be perfoivmed by the payment of the money on the part of Ashurst. It is averred that Ashurst made some payments before his. death in the fall of 1887. The ground of demurrer upon which the argument is predicated is assigned in the following words : “The bill fails to describe the notes alleged to have been executed for the purchase money, or to show when same was due. ” It is obvious that the allegation of the bill above referred to, that complainant did not know whether the notes were ever executed or not, was intended by the pleader as the averment of an excuse for the absence of a particular statement of the terms of the contract in reference to the time stipulated for performance on the part of the vendee, if indeed there was such a stipulation. It is observed that
It is not essential to the maintenance of a bill for specific performance that the complainant, vendee, offer to perform, or tender a, deed before filing the bill. A failure to do so affects only the question of costs. — Stevenson v. Maxwell, 2 Coms. (N. Y.) 408; Bruce v. Tilson, 25 N. Y. 194; Morris v. Hoyt, 11 Mich. 9; Irvin v. Gregory, 13 Gray 215.
It is a familiar rule, declared in many of our decisions, that the relation of a vendor of lands, who has retained the title and bound himself to convey on payment of the purchase money to his vendee, is analogous to that of mortgagee to mortgagor. All the incidents of a mortgage attach to it. We hold, therefore, that such a vendor in possession of the lands is accountable to the vendee or his assignee for rents and profits to like extent that a mortgagee in possession is accountable.
The other grounds of demurrer are so manifestly untenable that we do not discuss them.
The decree of the chancery court is reversed, and a decree will be here rendered overruling the demurrers to the bill and remanding the cause for further proceedings. The defendants will plead to or answer the bill within thirty days, with authority in the chancery court to extend the time, if necessary.
Reversed, rendered and remanded.