
    Crawford v. Meyrovitz.
    
      '¡Specific- Performance.
    
    (Decided April 18, 1907.
    43 So. Rep. 789.)
    
      Vendor dnd P.urchas&i';' ‘Bond 'for Title; Cancellation. — A bill'to fe-- • 1 quire the specific pérforpiance of a bond for title -is riot without , . equity because, under the recitals of -the bond the obligor could • cancel the sale on grantee’s default, in any of the installment ■ payments of which.there had been a .default, as no cancellar tion was shown but a mere refusal to receive payment which could not amount to a cancellation without an offer to return • tlie money already paid on the purchase. ' ' ' •
    Appeal . from Houston Chancery ,Court.
    'Heard, before Hó¿. W. L.'Parks.
    Bill by E. Meyrovitz.against J. L.. Crawford and others. ' From a decree overruling a motion to dismiss for want of equity,,defendants appeal.
    Affirmed.
    The recitáis of the bond for title, so far as,'is necessary to be here set out, are as follows: ' “Tlie'purchase price of said lots is to be paid as follows: $50 in cash upon the delivery of this instrument, which is doné; $100 on. the 1st day of each of the following months, October, November, and December, 1901, and January, February, April and June, 1905; $166.66 on the 1st days’ of October and November, 1905; 'and $166.68 on the 1st day of December,'1905. Each of said installments' shall be evidenced by note, with interest thereon at 8 per cent, per' annum from date, tlie same to be computed semiannually. It. is further agreed that 30 clays of grace shall be allowed on each installment herein set out; but.' in casé of. failure to pay each installment within the' date of maturity or ‘grace, the grantor shall have the right to annul this contract. " '(Here follows the clause as to the execution of a warranty deed', etc. )■ It is agreed that .the said E.. Meyrovitz shall take immediate possession Of all of the land'above described in the possession of’.the'grantor; but'such portions as .are-now in the'possession of‘another person may be retained by such ‘ third pérs.oh without'liability fbr a period of two years. ’ But the. vendor • herein agrees to surrender' -to the grantee the possession' of the eiitire - land above described within two years from'thefclate-of 'the-execution oí this contract.” J.’ He and 'Eva Beeves,- the grantors in the above'bon'd for title,and J.L.' Crawford are made parties defendant. '• '
    R.' 13;, Crawford, for appellant.
    Time was'of the essence of'the contract. .If píántiff-should establish every other allegation in his bill or if every allegátion in his bill be taken-as true and'he'would be entitled to relief, then the bill is not subject to a motion to. dismiss, but if‘not, it would be so subject. — Blackburn v. Fitzgerald. 130 Alá. 581.' When appellee failed to make payment’of the purchase money as provided in the contract and the appellant-declared a forfeiture, appellee lost her rights under the contract ánd has no right in equity. — Nelson 'C. Banders} 123 Ala. 615; LeBr-on v. Morris cG Go\; 1.1.0 Ala. 150,
    ,S. H. Dent, Jr., and Espey & Farmer, for appellee.
    There is nothing in the contract itself which, makes time of the essence. Reeves could not annul the contract without giving appellee notice to that effect'before exercising the'right and without putting appellee in statu qxtO’. — McFmdden v. Henderson, 128 Ala,. 221; Meyers v. Lemier, 52 N.-Y. 647; 24 A. & E. Ency Law. As to whether the- covenants aré ■ dependant or independ ant of each other, thé rulé is, that where- mutual covenants go to the. whole of the consideration on both sides, they are mutual conditions, the one precedent to the other, but where the covenants go only to a part of the consideration, then a remedy lies on the covenant to recover damages for the breach of it, but it is not a condition piecedent. — Fullemcider r. Bowan, 186 Ala. 287.
   SIMPSON, J.

This appeal is from a decree of the chancery court overruling a motion to dismiss the bill for want of equity. The bill was filed by the appellee, and alleges that on August 9, 1904, one of the respondents, J. H. Reeves, sold the lands in question to complainant for $1,250, of which 50 was paid in cash and the remainder in’deferred payments as therein described, * evidenced by promissory notes. At the time of the purchase the complainant was put in possession of the lands, and the title bond set out in evidence executed by said Reeves and wife. Said title bond gives all the details of the sale, describes the notes given for deferred payments, and states: “But, in case of failure to pay each installment within the date of maturity or grace, the grantor shall have the right to annul this contract.” The bill states that purchase-money notes to the amount of $500 have been paid; that on the 1st day of June, 1905, the complanant went to the said J. H. Reeves and tendered him the amount of the note that was due on that date ($166.66 2-3), and was informed by him that tire note belonged to the Dothan National Bank; that she then tendered the amount to J .L. Crawford (one of the defendants), who was cashier of said bank; and that CraAvford refused to accept the payment, saying that he had bought the said land, for the purchase price of which said notes were given. And it is further stated that she tendered payment to said CraAvford of each of the succeeding notes as they became due, respectively, and he declined to receive payment. The bill further alleges that on the 7th day of June, 1905, while the complainant was in possession of said land, said J. H. Reeves and wife made a deed conveying said land to said J. L. CraAvford. The complainant offers to pay whatever amount is due on the purchase of said lands to the party aaíio, according to the judgment of the court, is entitled to receive same, and prays that, upon such pay: ment, the title to said lands he vested in the complain'ant.

The motion to dismiss the bill for Avant of equity was overruled, and the only insistence of error against said decree made by the appellant is that under the stipulations of the title bond the vendor had the right to cancel the sale if default was made in any of the payments. Appellant contends that there aatis a payment due on April 1st, Avith 30 days’ grace allowed, so that it was really due on May 1st, 30 days before June 1st, Avhen the tender Avas made. We may concede that the vendor and his assignee had that right, and still the bill is not Avithout equity, because no cancellation has been slioAvn. The mere refusal to receive payment would not amount to a cancellation, but it Avould be necessary to cancel in some more formal Avay, and to return the money which had been paid on the purchase. The cases referred to by the appellant were on contracts worded entirety differently from this one.

The judgment of the court is affirmed.

Tyson, (1 J., and Doavdell and Anderson, JJ., concur.  