85 Ala. 286 | Ala. | 1887
The evidence establishes beyond a reasonable controversy, that a contract for the sale of the land mentioned in the bill, to appellees, was made by W. C. Smith, as the agent of appellants, at the price, and upon the terms substantially corresponding with the allegations of the bill as amended. There is no contention that the contract is not plain and certain in its terms, fair, just and reasonable in its provisions, and founded on an adequate consideration. Neither is there any pretense that it was obtained by any undue advantage, accident, or surprise, or that it is affected by any inequitable feature. The contestation of appellants is, that it is not a valid contract because not in writing; and if valid, that complainants, who are appellees, seeking its specific execution, have deprived themselves of a claim to equitable interposition, by unjustifiable default and inexcusable delay in performing the contract on their part, which now causes its specific performance to work hardship or injustice to defendants.
The first material question is, whether the facts constitute a valid contract under the statute of frauds. The statute declares, that “every contract for the sale of lands, or of any interest therein, except leases for a term not longer than one year, is void, unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, and
The defendants further contend, that if the deeds avoid
The further defense is, that complainants delayed performance of the contract of sale, without excuse, and thereby authorized defendants to treat it as rescinded, and to recall the conveyances. Time may be regarded of the essence of a contract for the sale of land, when a large cash payment is to be made, and the deferred payments bear interest. It may be conceded, that in such case a court of equity will refuse to decree specific performance, if there is unjustifiable default, or inexcusable negligence in performing the contract, on the part of the purchaser. He is required to be desirous, ready, and prompt to perform.
The question then is, who was at fault for the postponement of performance ? The evidence clearly shows, that the first default was on the part of defendants in sending conveyances without C. A. Johnston’s wife’s relinquishment of dower, and without any explanation why she did not sign them. In the absence of an express agreement, the parties are presumed to contract with reference to an unincumbered and indefeasible legal estate, and complainants had the right to require deeds conveying such estate. — Goodlet v. Hansell,
It is further insisted that the deeds having been properly executed and acknowledged by H. R. Johnston and his wife, the complainants were bound to accept them as performance of the contract on his part; and that having refused to do so, the court will not decree specific performance by him. The contract of sale was joint, and the deeds were jointly executed by the defendants. The complainants could not accept them as performance by one, without also accepting them as performance by the other. H. R. Johnston concurred in recalling the deeds, and now refuses to perform the contract under any circumstances. Though he had properly executed and acknowledged the deeds, complainants’ declination to accept them under the circumstances, furnished no ground to treat the contract as rescinded, and no excuse for recalling them from the bank.
But the bill avers that the contract of sale was made September 30, 1885, while the proof shows that it was made September 30, 1886. There is no class of cases, in which correspondence between the allegations of the bill and the proof is more rigidly exacted, than in suits for the specific performance of contracts. The allegation of the time when the contract was made is descriptive of that which is material, and the variance between the allegation and proof is fatal, without an amendment of the bill. For this the decree must be reversed.
There are no averments in the bill on which a claim for the allowance of rents can be founded, and it is therefore unnecessary to consider this question.
The complainants can take nothing by their assignments of error.
Reversed and remanded.