Davis v. Taylor-Lowenstein & Co.

47 So. 653, 158 Ala. 227, 1908 Ala. LEXIS 601

• Court: Supreme Court of Alabama
• Decided: November 19, 1908
• Status: Published

Opinion

ANDEBSON, J.

The lease recites that the consideration therein expressed was paidj and' the complainants had the right to deal with Edmund Bailey, as per the recitals of tlie lease presented to them, and were not bound by any oral agreements made between the parties thereto, and of which they had no notice. Indeed, counsel for appellants in effect concedes that complainants are innocent purchasers, provided the lease was not invalidated by a failure to commence boxing the trees during the month of January, 1907. The lease, after de,scribing and conveying the premises, says: “To be used, operated, and worked for the purpose of manufacturing rosin and spirits of turpentine for the full term of three years from the date of cutting the boxes on any part of described tract. The boxing of the timber to start not later than January 31, nor before January, 1907.” The requirement that the boxing would start during the month of January was a mere designation of the time for the commencement of the lease. It did not make the validity of the lease dependent upon the starting of boxing, and was not a condition precedent; nor did it provide for a forfeiture in case of a failure to start boxing during the month of January, 1907, and was not, there fore, a condition subsequent. The lessors acknowledged payment of the consideration and conveyed the premises for a period of three years, beginning when the first boxing was done, -and the requirement that it should be started in January merely meant that the term would expire three years from the last day of January, 1907, whether boxing was started or not. If the lesse failed to start work on the trees, he was merely depriving himself of the use of same; but said failure did not abrogate the lease.

The chancellor did not err in overruling the demurrer for nonjoinder of parties. Hunt and Slaughter were neither necessary nor proper parties. — Bolling v. Pace, 90 Ala. 607, 12 South. 796; Caroline Bailey, having joined in the conveyance soixalit to be foreclosed with her husband, ivas a proper party, and was a necessary party in order to cut off her equity of redemption in her dower interest; but she is not a necessary party to a foreclosure suit in order to subject the property interest of the husband. — Craddock v. Am. Mort. Co., 88 Ala. 281, 7 South. 196; Kimbrell v. Rogers, 90 Ala. 339, 7 South. 241.

The amended decree merely cured a clerical misprision and made the decree more favorable to the appellant.

The decree of the chancery court is affirmed.

Tyson, C. -T., and Dowdell and McClellan, JJ., concur.