113 So. 246 | Ala. | 1927
Appellant filed this bill for specific performance of a contract of purchase of a certain house and lot in Clanton, Ala., which contract was approved by this court in Robinson v. Wade,
The bill, as amended, alleges a payment of $600 to the vendor W. C. Robinson and to the register under decree of the court for said Robinson of $2,821.86. The notes bear interest, and it is insisted that the bill was prematurely filed, in that there was yet remaining unpaid a small sum at the time the bill was filed, but not then due. Construing the bill most strongly against the pleader, we think this insistence is correct, and this brings us to a consideration of the pivotal question in the case. The contract contained the following provisions as to insurance upon the house:
"Should said Wade purchase said lot, he is to assume payment of taxes for 1923 and later years. Also insurance from date of purchase to be assumed by said Wade, and payment of policy to go to said W. C. Robinson in case of fire in such amount as is required to satisfy balance due said Robinson for purchase price with interest. * * * Said Wade to keep property of said Robinson insured in favor of *384 said Robinson until indebtedness is paid, or said Robinson may do so and add cost of same to purchase price of lot."
And the former decree of the court as to such contract provided for the payment by this complainant of the several installments, all taxes, "and the maintenance by complainant of policy or policies of insurance against loss by fire of any improvements of said property payable to defendant as his interest may appear, or in lieu of such insurance the payment by said complainant to defendant of such sums as may be expended by defendant in procuring and maintaining such insurance." The amended bill avers that defendant W. C. Robinson elected on May 15, 1923, to take out insurance upon the property in the sum of $1,500; the premium therefor being paid by complainant to the register for the benefit of said defendant, as was required under the contract and former decree of the court. The property was destroyed by fire on July 15, 1923, and complainant alleges that the insurance thereon was rendered uncollectable by reason of the neglect on said defendant's part to truly state the interest of himself and complainant in the property, and that defendant has thus breached his contractual obligation to protect complainant's interest therein. The bill seeks credit for the $1,500, alleged to be lost to complainant, and a decree over for any remaining sum.
If complainant was entitled to such credit, very clearly, under the terms of the contract so providing, the bill was not prematurely filed, and all payments completed. We think the principle is very generally recognized that a mortgagee (the vendor under this contract occupying similar position — Fire Ins. Co. v. Brooks,
The insurance to be procured was for the benefit of both parties, and we think the amended bill sufficiently shows that the vendor elected to exercise the privilege of taking out the insurance as provided in the contract, and that the premium therefor was chargeable to the complainant and was in fact paid to the register for said Robinson.
In so assuming himself to procure the insurance, Robinson also assumed the duty to exercise due care, and is to be held responsible for any loss to complainant by reason of a breach of such duty.
To the original bill Geneva Robinson, the wife of W. C. Robinson, was made a party, and in the amended bill it was alleged that the contract here involved was executed by W. C. Robinson prior to his marriage, but that, nevertheless, the defendant Geneva Robinson was claiming a dower interest therein. The amended bill, therefore, contained appropriate averments to quiet the title, so as to set at rest such contention, and thus procure a final determination as to the title to said property, so far as the same arises from said contract. It is insisted that these averments render the bill inconsistent and multifarious, but we think the following quotations set out in Forcheimer v. Foster,
" 'It is not necessary that all the parties should have an interest in all the matters of controversy; it is sufficient if each defendant has an interest in some of the matters involved and they are connected with the others.' Truss v. Miller,
The following authorities are also in point: Frazier v. Frazier,
We therefore conclude the bill, as amended, was not subject to the demurrer interposed thereto. The decree will be reversed, and the cause remanded to the court below for proceedings in conformity to the views herein expressed.
Reversed and remanded.
ANDERSON, C. J., and SAYRE and BOULDIN, JJ., concur. *385
