105 So. 659 | Ala. | 1925
It is well settled by the authorities that the equitable right to specific performance of a contract is not affected by the provision of mutual penalties for nonperformance. "Where a person has agreed to do a certain act, or to refrain from doing a certain act, and has added a penalty for the *576 purpose of securing a performance, a court of equity will, if the contract is otherwise one which calls for its interposition, compel the party to specifically perform, or restrain him from committing the act, as the case may be, notwithstanding the penalty. If the sum stipulated to be paid is really a penalty, the party will never be allowed to pay it, and then treat such payment as a sufficient ground for refusing to perform his undertaking." 1 Pom. Eq. Jur. (4th Ed.) § 446, citing, among other cases, Dooley v. Watson, 1 Gray 414.
As to the general equity of a bill by a vendor of land for specific performance against the vendee, the authorities are practically unanimous in sustaining it. 36 Cyc. 565, b, and cases cited in note 50. Our own court does not seem to have dealt with the question, but we are content to follow the generally established rule. The most serious question in the case arises out of the character of the contract — the mutuality vel non of enforceability.
It is an elementary principle of the law of specific enforcement that the remedy is not available to one contracting party unless he himself is capable of performing and may be compelled to perform. Tombigbee Valley R. R. Co. v. Fairford, etc., Co.,
There is an important distinction, however, between nonmutuality of obligation and nonmutuality of remedy. "True it is that a mutuality of obligation must exist when the contract is concluded. If it lack this element ab initio, no subsequent act of the party who seeks to enforce it can obviate the objection and render the contract capable of specific performance." Brown v. Munger,
Mr. Pomeroy has discussed this question quite fully, and we approve his statement of the law as well supported by the great weight of judicial authority. He says:
"It is a familiar application of the principle as to performance by the plaintiff, that the vendor or lessor can not force performance upon the purchaser, unless he is able to give a good title to the subject-matter. Where, however, the vendor gets in the title before the decree, 'the doctrine of equity is, when time is not of the essence, a decree will be made against the purchaser, if the seller can make a good title at the time of the decree, unless there has been bad faith, or an improper speculation attempted.' The weight of authority supports this rule, although there are several jurisdictions which hold that if the plaintiff could not make a good title at the time of the agreement, specific performance will be denied him on the ground of lack of mutuality. * * * If the vendee knew that the vendor had no title, or a defective title, at the time of the agreement, he has no ground for refusing to perform so long as the title is made good by the time of the decree."
5 Pom. Eq. Jur. (2d Ed.) § 2230. See, also, section 2194. To the last proposition are cited Brashier v. Gratz, 6 Wheat. 528,
In 25 Rawle C. L. 234, § 34, after referring to the contrary view, it is stated that:
"The better opinion is that it is not essential that the mutuality of remedy shall exist at the inception of the contract, and that where the contract was originally lacking in mutuality this element may be supplied by voluntary performance on the part of the party seeking specific performance" — citing Turley v. Thomas,
We do not think there is any uncertainty in the terms of the contract, and the allegations of the bill make a case for specific performance within the principle above discussed.
Our conclusion is that the demurrers to the bill were properly overruled, and the decree of the circuit court will be affirmed.
Affirmed.
ANDERSON, C. J., and THOMAS and BOULDIN, JJ., concur.