44 So. 841 | Ala. | 1907
— This was a bill filed by the appellee against the appellant, praying specific performance of an agreement to sell the lands therein described to complainant. The contract on which the equity of the bill rests is set out as an exhibit to the bill and will be set out in substance in the statement by the reporter. The original agreement of renting, in which was included an option to purchase, was dated October 26, 1901, and the agreed statement of facts shows that advancements were received by complainant during the years 1902, 1903, 1904 and 1905; that on January 6, 1902, complainant executed to respondent a note and mortgage on his crops to he grown on said lands during that year, and on certain other personal property, for $200, due October 15, 1902, which included the $40 rent, and also amounts due for previous advancements, some of which had been made before the execution of the original agreement. Certain other advancements were made during that year and in the fall and winter payments were made, reducing the entire amount due, and on Maroch 30, 1903, complainant executed another mortgage and note, covering the same property and the crops of that year, for $133, due November 1, 1903, which included the balance due and advances up to date. During the fall of that year the complainant paid respondent sufficient amount of money to pay off entirely said mortgage, but said nothing as to which debt it was to be applied to. Respondent applied the money to the payment of said mortgage, and when, on November 7, 1903, complainant paid him $30, respondent gave him a receipt for the same “on rent note.” On March 2, 1904, complainant executed another
The contention of the appellant is that, although complainant paid each year, on or before November 1st, an amount exceeding the $40 rent which was to be paid, yet, as the complainant gave no directions as to which debt the payment should be applied to, and as respondent applied it to the other amounts due, thus leaving a portion of the rent not paid promptly at maturity, the complainant thereby forfeited his option to purchase. There is no controversy about the fact that a proper tender was made, on November 18, 1905, to purchase the land. Whatever may be the rule in other jurisdictions, it is the lawr of this state that, where a debtor owes several distinct debts to one creditor and makes a payment
The agreed statement of facts shows, not only that the complainant, when he made payments, did not direct to which debt they should he applied, but also that the creditor applied them to the debt other than the rent, and gave receipts to the complainant showing that fact, which receipts were received without objection. The debts were of equal dignity, secured by the same mortgage, or by lien on the crops for rent and advances. Consequently the rents were not paid at maturity. So it remains to determine the nature of the contract and the effect of such failure thereon. It Avas, first, a contract of renting; second, it had none of the elements of a sale; third, it AAras not an agreement to sell, for there was no such aggregatio mentium as is necessary to constitute an agreement. There Avas no obligation, on the part of
■’ The decree of the court is reversed, and a decree will be rendered dismissing the bill.
Reversed and rendered.