Neal v. Williams, 53 So. 94

Neal v. Williams

53 So. 94 | Ala. | 1910

DOWDELL, C. J.

On the first appeal in this case, taken from the decree of the chancellor overruling a motion to dismiss the bill for want of equity, it was held that the bill was not without equity, when considered as amended, on a motion to dismiss, as the rule required, and the decree appealed from was affirmed.—Williams v. Neill, 147 Ala. 691, 40 South. 943. On the second appeal, which was prosecuted from a decree on demurrer to the bill, it Avas held that the bill was subject to demurrer, and the decree was reversed, and the cause remanded.—152 Ala. 435, 44 South. 551. After remandment of the cause, the bill Avas amended, and, as amended, again demurred to; and from the decree sustaining the demurrer the present appeal is prosecuted.

By the amendment the bill is constituted one primarily for the specific performance of a contract; and the question of the abatement of the purchase money price of the land; on the ground of actual fraud, is made ancillary thereto. The bill as amended fully met the objections and defects pointed out by this court in the opinion on the second appeal.—152 Ala. 435, 44 South. 551. Under the averments of the bill as amended, it is plainly shown that the complainants are without a rem*313edy at law as to the abatement of the purchase price of the land as a defense at law in an action by the respondents. The terms of the contract, upon the refusal of the complainants to pay the balance of the purchase money, left it optional with the respondents in the bill to annul the contract, thereby enabling them to hold the land, and at the same time retain the money already paid them by the complainant. The bill as amended, and praying for a specific performance and to have abatement of purchase price, on the facts alleged, was not subject to any of the grounds of demurrer assigned.—Bell v. Thompson, 34 Ala. 633; Pomeroy on Contracts (2d Ed.) §§ 438, 449. Conceding that the complainants might have had their action at law to recover the money paid, on the grounds alleged, the bill as amended, as we have already said, was one for the specific performance of the contract, and as such contained equity; and the court, having acquired jurisdiction for one purpose, will assume it for all purposes necessary to the ends of full and complete justice.

Clearly, to our minds, the bill as amended is not a departure from the original bill, nor is it open to the objection of repugnancy. Our conclusion is that the chancellor erred in sustaining the demurrer; and his decree will be reversed, and one here rendered overruling the demurrer.

Reversed, rendered, and remanded.

McClellan, Mayfield, and Sayre, JJ., concur.