Milton Realty Co. v. Wilson , 214 Ala. 143 ( 1926 )

The bill had for its purpose specific performance on the abatement of the purchase price of real property, and an accounting between the parties, and prayed for general relief.

The bill is sufficient as against demurrer urged, and entitles complainants to relief, averring, as it does readiness, willingness, and ability to perform as to what is found just and right in the premises (Blackburn v. McGlaughlin,202 Ala. 434, 80 So. 818; Simmons v. Henderson, 207 Ala. 692,93 So. 624; Enslen v. Woodlawn. etc., Co., 210 Ala. 40,97 So. 80), in view of its allegations that complainants had paid a large part of the purchase price, and made valuable improvements in the property as their home, and that respondents were unable to convey all the property contracted to be conveyed, for the reason that they did not own the 13 feet in question (Elliott v. Boaz, 9 Ala. 772, 779; 5 Pom. Eq., p. 4980, § 2231). The amendment to the bill, to the effect that respondents had been called upon for performance and refused that request, was sufficient in a court of equity, in view of the deficiency in front footage and damage to complainants in virtue of having made valuable improvements and paid a large part of the purchase price, as averred in the bill as originally filed. Manning v. Carter, 192 Ala. 307, 68 So. 909; same case, 201 Ala. 218, 77 So. 744; Bell v. Thompson, 34 Ala. 633; Hart v. McClellan, 41 Ala. 251; Carter v. Thompson,41 Ala. 375; Carlisle v. Carlisle, 77 Ala. 339. Moreover, in a bill for specific performance on grounds stated, and to relieve against forfeiture of the nature indicated by the contract exhibited, no demand for performance, or for part performance, is required. Ala. Pub. Serv. Com. v. Mobile Gas Co., 213 Ala. 50,104 So. 538; Neal v. Williams, 168 Ala. 310, 53 So. 94.

The evidence, taken ore tenus in open court, does not disclose that complainants had knowledge of the deficiency or defect in the title of respondents, or had notice thereof when they purchased the property, partly paid for it, and improved it as a home. The court had all the evidence as to the respective values of the two tracts, and was enabled to compute and declare by the decree rendered the fair value of the abatement. Ray v. Watkins, 203 Ala. 683, 85 So. 25; Andrews v. Grey, 199 Ala. 152, 74 So. 62. The purchasers, having paid about $800 on the purchase price, made valuable improvements on the property, and occupied it as a homestead before knowledge or notice of the failure of title of the sellers to 13 of the 38-foot frontage, were entitled as a matter of right to specific performance of whatever interest the sellers have, upon complainants' compliance with their part of the contract, as ascertained by a court of equity. Williams v. Kilpatrick, 195 Ala. 563, 70 So. 742; 5 Pom. Eq., p. 5042 et seq., § 2256.

The bill avers that $800 of the purchase price has been duly paid pursuant to the contract, and it was of easy ascertainment as to what rebate should be given concerning the failure of title to the 13 feet as related to the other property and its value. In a case like this, where complainant is ready, willing, and able to comply with a decree of a court of equity, and where an award of abatement is prayed after accounting as to the respective rights of the parties under the sale lease contract to avoid the disastrous forfeitures provided by the contract (Ala. Pub. Serv. Com. v. Mobile Gas Co., 213 Ala. 50,104 So. 538), a court of equity is the only proper forum to adjust the rights and equities of the parties. Oppression and injustice will not be worked upon the defendant by the decree made the basis of the appeal (Tombigbee Co. v. Lumber Co.,155 Ala. 575, 587, 47 So. 88; Lowery v. May, 213 Ala. 66,104 So. 5).

The measure of damages is the difference between the value of the land actually sold and that of the land represented and purported to have been sold. Manning v. Carter, 201 Ala. 218,77 So. 744; same case, 192 Ala. 307, 68 So. 909.

The testimony sought to be elicited from Tribble as to his transactions with Stewart, the agent and attorney of complainants, after the death of Stewart, is protected by the provisions of section 7721 of the Code of 1923. Bush v. Bumgardner, 212 Ala. 456, 102 So. 629; Rogers v. Austill (Ala. Sup.) 104 So. 321;¹ Blount v. Blount, 158 Ala. 242, 48 So. 581, 21 L.R.A. (N.S.) 755, 17 Ann. Cas. 392. The due cross-examination of the witness upon the matter brought out by the other side was not a waiver or made competent the evidence offered. Scarborough v. Blackman, 108 Ala. 656, 18 So. 735. No objection to the evidence was required by the statute. Code, § 6565; Moore v. Moore, 212 Ala. 685, 103 So. 892; Cotton v. Cotton (Ala. Sup.) 104 So. 650;² Alabama, etc., Co. v. Jones,213 Ala. 398, 104 So. 785; Mason v. Calhoun, 213 Ala. 491,105 So. 643.

The decree of the circuit court in equity is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and BOULDIN, JJ., concur.

¹ 213 Ala. 163.

² 213 Ala. 336.