142 So. 508 | Ala. | 1932
A vendor of real estate may maintain a bill for specific performance against his purchaser. Melton v. Stuart,
Complainant and respondents entered into a contract by which the former agreed to sell, and the latter agreed to buy, land in Florida, and to pay the purchase price in certain installments stated in the contract. By it the respondents agreed to pay the taxes and assessments, in default of which complainant could do so, and thereby respondents became indebted to complainant in the amount so paid. But it is also provided that, if the purchasers shall make default in respect to the covenants and agreements, which shall continue sixty days, this contract shall become, and is thereby made, a lease between the parties.
The purchasers are alleged in the bill to have made such default, and which continued sixty days. The court sustained a demurrer to the bill, because the facts alleged show that the contract became a lease, and that complainant could not have its performance as a contract of sale. The correctness of such interpretation of the contract is the only question argued by counsel on this appeal.
In the case of Nelson v. Sanders,
In Collins v. Whigham,
The nature of the contract under consideration does not show such right of election to be exercised by the purchaser. There was here a formal and unconditional contract to buy and to pay for the land. If a default to fulfill his obligation is construed to produce a rescission of his purchase for his benefit and against the will of the vendor, it would allow him to take advantage of his fault without any advantage to the vendor.
Construing such a contract, this court held in Jones v. Hert,
We think that the contract set out in the bill in this case is within the authority of the cases cited supra, and that the bill is not subject to demurrer on the ground we have discussed, and the decree to that effect is therefore reversed, and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and GARDNER and BOULDIN, JJ., concur.