93 So. 517 | Ala. | 1922
Assignment of error is predicated on overruling respondent's demurrer to the bill as amended. The bill averred immediate compliance with the parol contract by the respective parties thereto, as delivery of possession of lands by the vendor and the constructing of buildings and improvements thereon as required of the vendee. It is further averred that the required improvements on the land were made with the consent of the vendor, or with his knowledge, from which his consent is implied. Thus was the contract taken without the statute of frauds. Code 1907, § 4289; Formby v. Williams,
The demurrer failed to challenge the amended bill for misjoinder of parties respondent, and argument as to joinder of the vendor's wife is not duly supported by specific ground of demurrer or assignment of error. Wootten v. Vaughn,
Respondents incorporated in their answer an additional ground of demurrer that the bill shows on its face that T. W. Morrow, as trustee and mortgagee, is a necessary party to the suit for specific performance of sale of the land. Where the fact of omission of a necessary party is shown on the face of the bill, it may be questioned by demurrer, or notice of the defect taken by this or the lower court ex mero motu. Hodge v. Joy (Ala. Sup.)
An inspection of the averments of the bill as to the nature of the contract of sale shows that it was not the purpose of the parties to the sale or of complainant to question, controvert, or affect, by the relief sought, the title or interest of this trustee as holding a mortgage on the land; but sale of the land was subject to the mortgage, and the lien fixed by the decree was in subordination to such title and interest of the mortgagee and its full discharge, or the execution of the decree would not affect the rights or remedies of the mortgagee had against the mortgagor or his lands. Hodge v. Joy, supra; Bolling v. Pace,
If the matter incorporated in the plea — that the initial parol agreement was made on Sunday — was a fact, it may be looked to in ascertainment of the parol agreement by the respective parties in the subsequent delivery of possession of the lands by the vendor and the erection of valuable improvements thereon by the purchaser with the *496
knowledge or consent of the vendor and as an execution of the agreement of purchase. It was "part of the res gestæ of the acts" of the respective parties showing the true intent of the parol agreement taking effect under the law. Eddins v. Galloway Coal Co.,
It is next insisted that there has been no tender of the balance of amount due on the purchase price. As a general rule, where specific performance is sought, an offer to perform must be shown to enable the court to render a proper decree affecting the interests of the respective parties in the subject-matter of the suit.
"The allegation is formal, and it is sufficient to show ability or willingness to perform, and it may well be doubted whether it is material, when the bill shows that complainant has partly performed, and has been prevented from making full performance by the act of his adversary, and that further offers would not be accepted, if tendered." Campbell v. Lombardo,
A repudiation of the contract by one party has been held to relieve the other of the duty of tendering performance of obligations or conditions precedent to, or concurrent with, performance (Saunders v. McDonough,
Lastly, the appellant cannot be heard to say that some of the improvements were not placed on the land originally, but across or just beyond the line, since he was present and indicated or saw the several corners of the land pointed out to his father, the vendee, complainant in the present suit. Thereafter an uncertainty existed as to the exact location of the land line as affecting that of McCarver, and the vendor, being appealed to by the vendee as to the true location, instructed his father to proceed with the erection of the improvements indicated, and to insist upon the lines and corners as originally pointed out to him. This estopped appellant, respondent, from insisting that all of the improvements were not placed in the first instance upon the land. To show the good faith of complainant, as soon as the true line was established, such of the improvements as were situated beyond the line were removed by complainant to the lands in question, and appellant had the benefit of the same at the time of the first decree. He was estopped by his positive acts; whereas the law is that a negligent act or guilty silence may work an estoppel as effectually as an express representation. Ivy v. Hood,
A verbal sale of land in which the wife did not join may be sufficient to warrant equitable relief, subject to the wife's inchoate right of dower. Chavors v. Mayo,
In a proper case, where a bill is filed to compel specific performance of a contract of sale of lands, notwithstanding specific performance is refused because of failure to establish the contract as alleged, yet it may be retained for the purpose of allowing the purchaser compensation where he went into possession of the land, paid all or a part of the purchase price, or made valuable improvements thereon on the faith of his contract. Under such circumstances (on failure of specific performance) he has not an adequate remedy at law for the payments or improvements made by him, and on proof of his averments is entitled to have a lien declared upon the land for his reimbursement for the same. "An equity court alone can declare and enforce such a lien." Goodwin v. Lyon, 4 Port (Ala.) 297, 314; Mialhi v. Lassabe,
An examination of the foregoing authorities discloses that only one of these cases had for its subject lands that at the time of the attempted sale were a part of a homestead. This was the fact in Williams v. Kilpatrick, supra, where the owner of a homestead, greater in value than $2,000 or in area than 160 acres, sold a portion thereof, leaving (including the dwelling and the land contiguous thereto) the "maximum value or area allowed by law for the homestead." Held, that such sale amounted to the selection of a homestead to the exclusion of the alienated tract, and that the provisions of section 4161 of the Code, with respect to the alienation of homesteads, was without application; that a verbal sale of a one-acre tract from such homestead was sufficient to give the vendee an equitable title, subject only to the wife's inchoate right of dower. In that case, though relief was denied because the court was not reasonably satisfied by the evidence of the right to specific performance, yet the bill was retained "in order to do equity by compelling respondent [vendor] to restore to complainant [vendee] the value paid by him, and for which he had no equivalent." And this relief was awarded in accordance with "the well-established practice of chancery courts in such cases" to "recover the consideration paid by him, or to have compensation for valuable improvements made by him."
In Clark v. Bird,
The evidence of the value of the 40 acres of the homestead at the time of the making of the parol agreement or sale of the small tract is not sufficient to warrant the decree, under the authority of Williams v. Kilpatrick, supra. If it was of less than $2,000 in value at the date of the sale to complainant, the rule declared in Clark v. Bird, supra, is apparent, and would prevent a recovery at the instance of the complainant. We have carefully considered all of the evidence, and are of opinion that during the year 1913 the 40-acre tract in question was not worth $2,000.
The decree of the circuit court, in equity, is reversed, and a decree is here rendered for the respondent in the court below.
Reversed and rendered.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.