Rice v. Rice

From a decree of the chancery court declaring complainant’s right to specific performance, the appeal is taken.

*673(1) The respondents answered the bill, without testing the sufficiency of its averments by demurrer before answer, or at the time of answer, and as a part thereof, as they could have done under the statute.—Code, § 3128; Chancery Rule 72 (Code, p. 1550). Without having so demurred, the respondents cannot, for the first time on appeal, complain that the bill was not specific in its averments of tender, etc.—3 Mayf. Dig. p. 325, § 2820; Mountain v. Whitman, 103 Ala. 630, 16 South. 15.

(2) The respondent, Charles C. Rice, having sold the land in question to a third person and put himself in a position where he could not convey on payment or tender of the balance of the purchase money, the complainant was thus relieved of all duty to make such tender, if the duty was incumbent upon him.—Taylor v. Newton, 152 Ala. 459, 465, 44 South. 583; Ashurst v. Peck, 101 Ala. 499, 14 South. 541; Jenkins v. Harrison, 66 Ala. 345; Luchetti v. Frost, 65 Pac. 969; Zempel v. Hughes, 235 Ill. 424, 85 N. E. 641; Auxier v. Taylor, 102 Iowa 673, 72 N. W. 291; Smith v. Gibson, 15 Minn. 89 (Gil. 66); Kellogg v. Lavender, 9 Neb. 418, 2 N. W. 748; Roche v. Osborne (N. J. Ch.) 69 Atl. 176; Gaum v. DuBois, 43 Pa. 260.

The complainant has averred his readiness, and made offer, to do equity as may be required of him by the court, and to pay any balance that may be found due on the purchase price.—Taylor v. Newton, supra; Ashurst v. Peck, supra; Campbell v. Lombardo, 153 Ala. 489, 44 South. 862; Zirkle v. Ball, 171 Ala. 568, 54 South. 1000.

The evidence has been carefully considered, and a discussion of same is deemed unnecessary. Without indulging presumptions in favor of the correctness of the decree, we have reached the conclusion that the chancellor decreed the proper relief. It results that the decree is affirmed.

Affirmed.