117 So. 304 | Ala. | 1928
The complainant rests his case on the doctrine:
"That, where the agreement secured is simply one for the payment of money, a forfeiture either of land, chattels, securities or money, incurred by its nonperformance, will be set aside on behalf of the defaulting party, or relieved against in any other manner made necessary by the circumstances of the case, on payment of the debt, interest, and costs, if any have accrued, unless by his inequitable conduct he has debarred himself from the remedial right, or unless the remedy is prohibited, under the special circumstances of the case, by some other controlling doctrine of equity." 1 Pom. Eq. Juris. (4th Ed.) § 450, p. 854.
In Barton v. W. O. Broyles Stove Furniture Co.,
"The jurisdiction to relieve against forfeitures is exercised upon the principle that a party having a legal right shall not be permitted to avail himself of it for purposes of injustice or oppression. The jurisdiction is regarded as a dangerous one, not to be extended. It does not extend so far as to authorize a court of equity to disregard and set aside the valid stipulations of the parties upon the performance of which their rights depend." *692
21 C. J. 100, § 76; Douglas v. Knickerbocker L. Ins. Co.,
And where, as here, there is no controversy as to the balance due under the contract, and a reasonable opportunity is afforded for payment or tender, a tender of the amount due is a prerequisite of the right to invoke the jurisdiction of a court of equity to relieve from the forfeiture. 21 C. J. 100, § 76; Sheets v. Selden, 7 Wall. (U.S.) 416,
In the case at bar, the complainant, in addition to his failure to pay some of the notes as they matured, violated the contract by removing the car out of Jefferson county without the knowledge or consent of the vendor, requiring extra effort and expense to locate and repossess it.
Under these circumstances and the stipulations in the contract, the vendor acted within its legal rights in taking possession of the car; yet this was done with the consent of complainant. The car was held, as the evidence shows, from the 28th of May, 1925, until the 11th day of the following July, subject to the right of complainant to pay the balance due and obtain the car, with notice to Carter that, if he failed to pay the balance due, on or before the last date, the car would be sold, in accordance with the terms of the contract, free from all claims of the complainant. The car was in fact held until October 3, 1925, before it was sold, and the evidence shows that the defendant was willing at all times before it was sold to accept payment from complainant, and that he was so advised. Notwithstanding this, the complainant neither tendered nor offered to pay the balance due, though he made some effort to procure a purchaser and to borrow money on the car with the defendant's consent.
All the notes had matured on June 23, 1925, long before the car was sold, and the evidence shows that the property involved is of a class that rapidly depreciates in value.
Under these circumstances, it cannot be said that the conduct of the defendant was oppressive or attended with circumstances showing injustice toward the complainant.
We are therefore of opinion that relief was properly denied, and the bill dismissed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, and THOMAS, JJ., concur.