Forney v. City of Birmingham

55 So. 618, 173 Ala. 1, 1911 Ala. LEXIS 272

• Court: Supreme Court of Alabama
• Decided: May 11, 1911
• Status: Published

Opinion

DOWDELL, C. J.

The bill is in the nature of a bill for the specific performance of a contract. A general demurrer for want of equity was filed to the bill, and from the decree of the chancellor, overruling the demurrer, this appeal is prosecuted.

If the appellant’s grantor had not parted with the legal title to the land, no one would question the right of the appellee, on the facts averred in the bill, to compel such grantor, in a bill for that purpose in a court of equity, to convey title to the appellee. The respondent, the appellant here, having purchased the land with full knowledge of the existing contract of its grantor and of the appellee’s rights as alleged in the bill, can occupy no higher ground than its grantor. In equity it simply takes the place of its grantor in respect to the appellee’s rights. — Ross v. Parks, 93 Ala. 153, 8 South. 368, 11 L. R. A. 148, 30 Am. St. Rep. 47; Meyer Bros. v. Mitchell, 75 Ala. 475; Dickinson & Winn v. Any, 25 Ala. 424.

Tbe fact that the appellee may have a remedy at law against the appellant’s grantor for a breach of contract-does not take away appellee’s equitable remedy to compel specific performance of the contract by such grantor’s vendee.

Tbe fact that the complainant is a member of the board of aldermen of the city of Birmingham cannot destroy or affect his property right in the alleged option contract. He acquired tlie property right through no transaction with the city. The averments of the bill negative any snch suggestion.

We are of the opinion that the facts stated in the bill, and which are confessed on demurrer, give it equity. The decree of the chancellor, overruling the demurrer, will be affirmed.

Affirmed.

Simpson, McClellan, and Somerville, JJ., concur.