Stewart v. Cross , 66 Ala. 22 ( 1880 )

STONE, J.

The testimony is in conflict, whether the purchase price of the lot in controversy was one hundred aud fifty, one hundred and sixty, or one hundred and seventy-five dollars. The original contract is sent up with the record, and we have examined it with some care. Subjected to a magnifying glass, the word sixty is discernible, under the word seventy. Some thing has been written under the word five, in each place where it' occurs. It was possibly the sum repeated in figures, as there remains, not entirely obliterated, what resembles a mark of parenthesis. The paper presents some note-worthy features. The signature of the subscribing witness appears to be in the same ink as the body of the instrument, which, it is shown, was filled up in October, 1876. The re-written words, showing the alterations, and the signatures of the contracting parties, appear to be in similar, yet darker ink. An indorsement on the contract, signed in the name of Stewart, is in this language : “Paid to date, July 31st, 1877, $81.00 ; balance due, $81.00. J. H. Stewart.” Tnis was about seven months after the contract bears date. Tet the two sums stated,- $84 and $81, foot up $165, instead of $175, stated in the contract, as it is alleged to have been signed near seven months before. We simply state these appearances, without intending to comment further upon them. We are clearly convinced the chancellor erred in ascertaining the agreed purchase-money to be one hundred and fifty dollars. Stewart and wife each testify, the agreed sum was one hundred and sixty dollars, and the paper evidencing the contract bears them out.

If Stewart ever had • the right, under the writing, to renounce the contract of sale, ajjd treat the partial payments as rent money, he waived that right by continuing to receive partial payments on the purchase. He cannot now be heard to assert it.—Acker v. Bender, 33 Ala. 230; 1 Brick. Dig. 396, § 276.

The exceptions to the register’s report, which were overruled by the chancellor, ■were not so tiled as that we can review the decision. — Buie 93 of Chancery Practice, Code, p. 174.

It was, and is claimed, that what maybe called the substituted contract, of January 8th, 1877, by which the purchase price was fixed at one hundred and seventy-five dollars, instead of one hundred and sixty, the originally agreed price, must control in the decision of this cause. Tiie contract had been taken out of the operation of the statute of frauds, by placing the purchaser in possession, and receiving part payment of the'purchase money. — Code of 1866, § 2121, subd. 5. That being the case, the terms of the agreement to forbear were usurious, and can not be enforced.

The defendant in the court below, appellant here, claims, first, that the purchase-money agreed to be paid to him was $175. In the second place, he claims, that by the terms of the contract, Winnie Cross, nee Jackson, forfeited her contract as purchaser, and became a tenant of Stewart, with authority to occupy as such, until she was reimbursed the purchase-money she had paid, computing the value of her use and occupation at five dollars a month. We have shown above that neither of these positions is tenable. But their assertion proves that a tender of any balance due, on the basis of $160 as the agreed purchase price, should there be any thing found due, would have been refused by Stewart as full payment.

In the present state of tbe, record, we can not finally dispose of the case to our satisfaction.

Beversed and remanded.