Zirkle v. Ball

ANDERSON, J. The contract in question did not provide for a forfeiture, ipso facto, upon a default in the payment of the installments, but authorized the respondents to declare it forefited as a contract of sale, and treat it as a lease, within a certain time after a default in the payment of said purchase-money installments. The contract was made in March, 1902, and the payments of $15 per month and interest all matured before 1906, yet the respondents, up to and including the month when Queen Rice died, March, 1906, received payments from her and treated the contract of purchase as still existing, which was long after they had the right thereunder to terminate it as a contract of purchase and thus convert it into a lease. Not having terminated the contract of sale within the terms and under the provisions thereof, the respondents could not thus waive their right to then do so and continue to treat it as a contract of sale, and then, after the death of Queen Rice, and after a large portion of the purchase money had been paid, declare the sale forfeited and treat the purchase money as rent.—Stewart v. Cross, 66 Ala. 22; Davis v. Robert, 89 Ala. 408, 8 South. 114, 18 Am. St. Rep. 126; [572] Hurst v. Thompson, 73 Ala. 158; Acker v. Bender, 33 Ala. 230; Andrews v. Tucker, 127 Ala. 631, 29 South. 34. The respondents did not declare the contract of sale forfeited within the time authorized to do so, but treated it as a contract of purchase long after the last payment fell due, and the city court properly decreed that it still existed and Avas enforceable as a contract of sale. ■ It is not essential to the maintenance of a bill for specific performance that the complainant vendee offer to perform, or tender a deed, before filing the bill. A failure to do so affects only the question of costs.”—Ashhurst v. Peck, 101 Ala. 509, 14 South. 541, and cases cited; Taylor v. Newton, 152 Ala. 459, 44 South. 583. The bill in the present case offers to do equity, and to pay whatever is due on the purchase contract; and the chancery court had the power to require the doing of same as a condition precedent to relief, and to protect the respondents as to costs, in case they did not resist the performance. The decree of the city court is affirmed. Affirmed. Doavdell, O. J., and Mayfield and Somerville, JJ., concur.