73 Ala. 158 | Ala. | 1882
— This is a bill for specific performance of an •executory contract for the purchase of lands, the purchaser complaining, and praying relief. Such relief is never granted, unless complainant clearly shows himself entitled to it. It is never decreed unless strictly equitable. — 1 Brick. Dig. p. 692, § 160; Gentry v. Rogers, 40 Ala. 442.
The bill and amended bill must he construed as one. Governed by its averments, Mrs. Thompson was the owner of the lands in controversy — her statutory separate estate — in quantity four hundred acres. In 1879, an agreement of sale and purchase was entered into between Thompson, representing his wife, and Hurst, the purchaser. The contract was evidenced by two writings; the purchase-obligation signed by Hurst, and bond for title signed by Thompson and wife, attested by two subscribing witnesses. The price agreed to be paid for the land was thirty bales of cotton, averaging five hundred pounds per bale, and of class strict good ordinary, or its value in money at the maturity of the several installments ; six bales to be paid October 15th, 1880; nine bales, November 15th, 1880; and fifteen bales, January 1st, 1882. Hurst was to take possession January 1st, 1880,- and. cultivate the lands. This he did. There was a stipulation in the writings that if Hurst failed to pay the six, nine and fifteen bales, according to contract, in 1880, the contract ceased to be a sale and purchase, and became a lease for one year, when Hurst was to pay six bales of cotton for rent-, and surrender the possession to Thompson.
The bill and exhibit disclose that ITurst did not himself pay the nine bales of cotton due in November, 1880, or the deficiency in the six bales, or their money value. In reference to-this payment, the bill shows this state of facts: That Ilurst,. before November 15th, 1880, sold half the land purchased from Thompson to Thornton, — whether an undivided half, or a described half, does not appear. The alleged terms of sale were, that Thornton was to pay Thompson half the purchase-money j that is, he was to pay seven and a half of the nine bales, unpaid part of the first installment, and pay half of the last installment. It is then averred that Thornton paid the money value of the seven and a half bales, and, also, under an arrangement with Hurst, paid for him the unpaid balance of his half of the first installment, being $83.30. Thereupon Hurst transferred the title bond to Thornton, with the following indorsement upon it: “I hereby-transfer to E. J. Thornton the within bond as a collateral to secure him in the payment of an amount of -money paid by him on my account, and after twelve o’clock on Monday next to be disposed of in any way he desires, to raise the amount I am due him. November 24th, 1880.
Witness: G. L. ITurst. (Signed) A. L. O. Hurst.”
November 24th, 1880, was Wednesday. The next Monday was 29th. Four days afterwards — December 2, 1880, — the
Dec. 2nd, 1880. (Signed) B. J. Thornton.”
All these averments are contained in the amended bill. This left the status of the transaction as follows: Hurst had had the use and occupation of the premises for one year, 1880. He had paid six bales of cotton less eighty-three pounds, and only that much. Thompson had received exactly the same. True, Thornton had paid him, for Hurst, the balance of the installment for 1880 — $458.30—but that had been repaid to Thornton, wli6n the title-bond was surrendered back to Thompson. So, in fact, Hurst was out only the six bales of cotton, and Thompson had received only that much.
If it be true, as charged, that Hurst had sold half the lands to Thornton, and that, by the terms of the sale, Thornton was to pay half the purchase-money, then it follows that Thornton paid for Hurst only $83.30, and the authority given to Hurst by the indorsement on the bond only empowered him to sell the land to raise $83.30. This being the case, Thornton was guilty of a breach of duty and of trust, when he sold, not only to repay himself the $83.30, but the entire sum paid, $458.30. Had Thompson any knowledge of this alleged sale by Hurst to Thornton, and the breach of trust by the latter? The bill nowhere avers that he had such knowledge. ¥e must, therefore, suppose he had no knowledge of it. Thornton presented to him the bond he and his wife had given to make title to Hurst. It was indorsed to Thornton, with authority to dispose of it in any way he desired, to raise the amount Hurst was due him, if the same was not paid by twelve o’clock on the next Monday. Monday had' passed, and the money was not paid. The writing was silent as to the amount Thornton had paid for Hurst. Hurst had owed Thomjison $458.30, and this sum Thornton had paid. In the absence of notice that Thornton had purchased half the land, and, for that reason, had paid $375 of the $458.30 on his own account, Thompson was justified in believing the whole amount had been paid by Thornton for Hurst. Hence, he was justified in believing Thornton was authorized to raise the whole $4§8.30, by disposing of the bond. Acting upon that most natural appearance of the transaction, Thompson returned to Thornton the entire sum he had received from him, $458.30, and took up the bond he had given Hurst to make him title. This is the natural version of the transaction, as shown by the papers, and there is not an averment in
There are supposable categories, in which the complainant may be entitled to relief. We will, therefore, so modify the chancellor’s decree, as to make it a dismissal without prejudice. Thus modified, the decree of the chancellor is affirmed.