Gatewood v. Hughes

108 So. 562, 214 Ala. 674, 1926 Ala. LEXIS 109

• Court: Supreme Court of Alabama
• Decided: May 13, 1926
• Docket: 4 Div. 244, 244A.
• Status: Published

Opinion

BOULDIN, J.

The bill is in the nature of one for specific performance of an executory contract for the sale of lands on long-term installments, with stipulation that time is of the essence of the contract, and, upon default in payment of installments, the contract, at the option of the vendor, is to be forfeited, and all payments made to be retained as liquidated damages.

That forfeitures are not favored in equity, and may be waived by continued recognition and receipt of part payments after ground of forfeiture, is a well-recognized equitable doctrine. The doctrine is subject to general equitable principles in cases of •specific performance; the relief will not be awarded where, under the facts of the case, it would in itself be inequitable. Franklin v. Long, 191 Ala. 310, 68 So. 149; Zirkle v. Ball, 171 Ala. 572, 54 So. 1000; Root v. Johnson, 99 Ala. 90, 10 So. 293; Stewart v. Cross, 66 Ala. 22.

We find it unnecessary to determine the application of these rules to the facts of this case for the following reason: The chief value of the property was in a hotel building located thereon. Before the filing of the bill, it was destroyed by fire. Without conflict, the lot, with remaining improvements, is far less in value than the amount of purchase money, taxes and assessments remaining unpaid, and whose payment is a necessary condition precedent to relief. Hence the only equity of value to complainant rests upon that feature of the amended bill alleging that the successor to the rights of the vendor under the contract caused the building to be burned for the insurance he had taken thereon, and praying that this waste or reduction in value of the property be credited upon tbe purchase money, or applied in abatement of same. be

Upon a careful study of tbe record, we conclude complainant bas not met the burden of proof assumed by him upon that issue. Tbe decree dismissing the original bill was without error.

Tbe cross-bill of tbe insurance company, seeking.to cancel tbe policy because of breach of conditions and warranties, or for misrepresentations, has no independent equity. The defenses are equally available at law.

Tbe dismissal of tbe .original bill ordinarily should carry tbe cross-bill, and, unless there is want of an adequate remedy at law, the court will not be put in error in declining to retain tbe cross-bill as a distinct suit. Ex parte Conradi, 210 Ala. 213, 217, 97 So. 569.

Affirmed on direct and cross appeals.

ANDERSON, O. X, and SOMERVILLE and THOMAS, JJ., concur.