Rawlins v. Cook

321 So. 2d 208, 294 Ala. 733, 1975 Ala. LEXIS 1279

• Court: Supreme Court of Alabama
• Decided: October 3, 1975
• Docket: SC 1128
• Status: Published

Opinions

ALMON, Justice.

Elmer L. Cook, deceased was the owner of certain real property located in Dallas County. This property was mortgaged to the Peoples Bank and Trust Company of Selma. Cook entered into an oral contract on or .about December, 1971, or January, 1972, to sell the property to appellant, Josephine D. Rawlins, for $70,000.00 with appellant agreeing to maintain fire insurance on the premises for the benefit of the purchaser, seller, and mortgagee as their interests appeared. Appellant paid $10,500.00 down and went into possession of the premises on January 1, 1972.

Elmer L. Cook, the seller, died testate on February 12, 1972. In and by his last will and testament Mary Lee Cook, one of the appellees herein, was named executrix of his estate and was devised the subject property. Shortly after the death of the seller, on-or about March 23, 1972, appellant filed a bill for specific performance relative to the subject property (héreinafter called Suit I): Subsequent to the filing of the bill for specific performance but prior to trial, appellant entered into a written contract of sale of the subject premises to Thomas Gober for the sum of $70,000.-00. Gober paid $1,000.00 as a binder but never went into possession of the property. The bill for specific performance was tried on June 9, 1972, and the decree was entered on August 1, 1972.

The main structure located on the subject premises was destroyed by fire on July 5, 1972. Notwithstanding the fact that appellant had procured insurance on the subject property in accordance with the terms of the oral contract, the insurance companies refused to honor the claim relative to the damaged property, and the mortgagee bank, the assignee of each of the insurance policies, brought suit (hereinafter called Suit II). By amendments, appellant and the other appellees were made parties to the suit. The estate of Elmer L. Cook and others, likewise, filed suit against the insurance companies. In a pretrial order, the court consolidated the two cases against the insurance companies for jury trial. The jury returned a verdict in the amount of $60,000.00. On the trial of the case, all of the parties stipulated the amount owed the bank and the fact that it had a first lien on the funds and should be paid the amount of its mortgage.

Appellant made application to the court for a rehearing of its decree of August 1, 1972, involving Suit I. The application was continued from time to time until the conclusion of Suit II and was subsequently granted by the court on June 21, 1974.

On April 4, 1974, the trial court entered an.order disbursing the insurance proceeds ultimately received as a result of Suit II. The law firm of Jackson and Sikes was awarded $11,310.77 as attorneys’ fees and out-of-pocket expenses; the mortgagee was awarded $31,118.58 in payment of its mortgage on the subject property; and the remaining proceeds were held by the court pending a determination of the rehearing of Suit I.

A final decree determining the rights of appellant .and granting her specific performance in Suit I was entered on December 23, 1974, from which this appeal was taken.

Appellees have filed motions in this court claiming assignments of error I and V (dealing with attorneys’ fees and payment or the mortgage) should be struck as they relate to action by the trial court in its judgment in Suit II, from-which no appeal was taken. While there is some merit to this motion, we need not address ourselves to it as we are of the opinion that assignments of error IV (dealing with the remaining balance on the purchase price of the property) properly raises the question of the distribution of the insurance proceeds in Suit I from which this appeal was taken.

Appellant contends that the trial court erred in finding that appellant owed a remaining unpaid balance on the purchase price of $16,097.59. We agree.

Whether attorneys’ fees were properly awarded in Suit II under Tit. 46, § 63, Code of Alabama 1940, Recompiled 1958, is not before us. In that regard, however, see a history of this section in Dent v. Foy, 214 Ala. 243, 107 So. 218 (1925).

The effect of the final decree in Suit I was to charge attorneys’ fees to appellant.

The granting of specific performance of a contract is as though the court is enforcing the quid pro quo. The appellant, upon tendering into the court an appropriate sum of money, was entitled to the land and buildings contracted for. Since one of the buildings was destroyed by fire, she was entitled to the insurance proceeds subject only to prior legal claims against the proceeds. Clearly, the bank which held a mortgage on the property in question had such a prior claim. We find nothing in the record to indicate that appellant should be responsible for any attorneys’ fees to which the attorneys for the estate of Elmer L. Cook may be entitled.

Thus, we hold that the appellant in the instant case should be given an additional credit of $11,310.77 toward the purchase price. There may be other matters of credit which the trial court should consider upon remandment of this cause.

The judgment is hereby reversed and the cause remanded for entry of judgment (final decree) in conformity with this opinion.

Reversed in part and remanded with directions.

MERRILL, BLOODWORTH, MADDOX, FAULKNER and EMBRY, JJ., concur. HEFLIN, C. J., concurs in the result. JONES, J., with whom SHORES, J., joins, concurs in the result with opinion.