113 So. 20 | Ala. | 1927
The original bill was filed by the appellant against the appellees for specific performance of the contract between the complainant and Ledbetter, and to cancel the deed executed by Ledbetter to Mrs. Bagley, as a cloud on complainant's title. The demurrers of the defendants interposed to this bill were sustained, and, by leave of the court and without objection on the part of the defendants, the complainant withdrew her original bill and filed a substituted bill praying for like relief as prayed in the original bill. The defendants thereupon demurred to the substituted bill, and these demurrers were overruled.
The contract of sale, pleaded in the substituted bill and made exhibit thereto, is of the same character and purport as that considered in France v. Ramsey,
These averments clearly show that the substituted bill proceeds on the theory that Ledbetter had not attempted to exercise the right to forfeit the contract on account of the nonpayment of installments due thereunder, that the contract was usurious, and, after purging the debt of usury, complainant was ready, able, and willing to pay any balance justly due thereon.
After the testimony was taken, ore tenus, the complainant amended her bill by averring, in substance, that the testimony taken, if she was not entitled to a specific performance of the contract, she had paid an amount as rent greatly in excess of the reasonable rental value of the property, and was entitled to an accounting to ascertain the reasonable rental of the property, and prayed for a decree against the respondent Ledbetter for such amount as was in excess of such reasonable rent. The defendants demurred to the bill as last amended, and, on submission on the demurrer, a decree was entered sustaining the demurrer, with leave to the complainant to amend. So far as the record here shows, without amending the bill, after the demurrer was sustained thereto, the cause was submitted for final decree, and a final decree was entered dismissing the bill, from which the complainant now appeals.
The effect of the decree sustaining the demurrer to the bill as last amended was to put the complainant out of court, unless the bill was amended. Coleman v. Butt,
The last amendment, when construed most strongly against the pleader, as must be done on demurrer, assumes that there was a forfeiture by the complainant which would deprive her of the right to a specific performance, and, in so far as it asserts a claim for an accounting for excessive rent, is clearly inconsistent with the provisions of the contract, which provides that on a failure on the part of the complainant to meet the payments or pay the taxes and insurance, the other party to the contract "may declare this contract to be one of rental, and may apply all payments which have been made to him as rent on said property for past occupancy, which amounts are hereby agreed to be a reasonable amount therefor," and the demurrer to the bill as last amended was properly sustained. Henry v. Tenn. Live Stock Co.,
We find no error in the record, and the decree dismissing the bill is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.