61 So. 817 | Ala. | 1913
This is a bill for specific performance of a contract for the sale of land. The contract
After a careful revieAV of the pleadings and proof, we are of the opinion that the chancellor reached a correct conclusion, and that his decree must be affirmed. Leaving out of consideration the question as to the statute of frauds, it is made to conclusively appear by the proof that the real failure to perform the contract alleged was due to the fact that the wife of the vendor would not join him in the conveyance to the vendee, so as to cut off her dower right in the lands. This insuperable obstacle, so far as the parties to this contract are concerned, was attempted to be avoided by having the court to ascertain the value of such dower right and abate the purchase price of the land to that extent, and as abated enforced, in accordance with the rules announced by this court in Minge v. Green, 176 Ala. 343, 58 South. 381. While there was a difference of opinion among the members of the court as to the equity of a bill seeking such abatement, and enforcement of the contract as abated, and as to the certainty and correctness of the rule announced by the court for that purpose, it is in this case unnecessary to again go into that question, for the reason that this case must be decided on principles which preclude the reopening of that question.
The right to specifically enforce the performance of a contract is not absolute. Its enforcement in a measure, at least, rests in the sound discretion' of the court, a judicial discretion, of course, to be exercised according to the principles of equity. It has been held that contracts which will be thus enforced must be fair, must be reasonable, and must be just, and not attended with excessive hardships or injustice. Courts of equity have frequently refused to enforce contracts when it appeared that they were founded on mistake or surprise to such an extent that' their enforcement would be inequitable. — Tombigbee Co. v. Faircloth Co., 155 Ala. 575, 47 South. 88.
It is also a principle, of-equity jurisprudence that, before a court of chancery will specifically enforce a contract, it must be made to clearly appear to the court that it is thereby enforcing the contract which the parties made, and of this the pleadings must give distinct information. The court will not attempt to make a contract for the parties, and enforce it, even though it be one which the parties might and ought to have, made. — Homan v. Stewart, 103 Ala. 654, 16 South. 35.
The proof in this case indisputably shows that the first parol contract which was made, and Avhich is alleged in the bill, was subsequently modified by the
The learned chancellor who tried this case has written a full and able opinion in support of his decision; and, while we do not deem it necessary to go to the full length that the chancellor went in his opinion, we do concur fully in his conclusions and' in his opinion in the main. In fact, there is very little in this opinion that is not said in the opinion of the chancellor.
Finding no error in the decree of the chancellor, we are of the opinion that his decree should be affirmed.
Affirmed.