Opinion
4 Div. 890.
December 21, 1956.
Appeal from the Circuit Court, Dale County, Geo. C. Wallace, J.
Brown Steagall, Ozark, for appellant.
Contract for sale of land must be in writing. Code 1940, Tit. 20, § 3(1). In bill for specific performance a general allegation of tender is insufficient. 81 C.J.S., Specific Performance, § 131; Hart v. McClellan, 41 Ala. 251; Chandler v. Bodeker, 219 Ala. 357, 122 So. 435; Isom v. Johnson, 205 Ala. 157, 87 So. 543. A mere proposition to pay is not of itself a valid tender; there must be an actual production of the money or something to excuse failure to produce it. Camp v. Simon, 34 Ala. 126. In suit for specific performance complainant must allege facts which show performance of conditions of contract on his part or, failing therein, show sufficient excuse for non-performance. 81 C.J.S., supra; Chandler v. Bodeker, supra; Glasscock v. Kelley, 238 Ala. 593, 192 So. 586; Watts v. Gover, 244 Ala. 430, 14 So.2d 149.
Mike Sollie, III, Ozark, for appellee.
When written contract for sale of land reserves to vendor right to rescind if full payment of purchase money is not made by certain date and to treat partial payments as rent, vendor waives his right by continuing to receive partial payments after that date. 59 C.J. Spec. Perf., 1076, § 335; 66 C.J. Vendor and Purchaser, 780, § 376; Stewart v. Cross, 66 Ala. 22; Nelson v. Sanders, 123 Ala. 615, 26 So. 518; Jones v. Hert, 192 Ala. 111, 68 So. 259; Davis v. Folmar, 203 Ala. 336, 83 So. 60; Adams v. Smith, 208 Ala. 498, 94 So. 521; Gatewood v. Hughes, 214 Ala. 674, 108 So. 562; France v. Ramsey, 214 Ala. 327, 107 So. 816. Where parties to written contract acquiesce in its oral modification and non-performance according to original terms by one is in reliance upon other's assent, latter is estopped to deny efficacy of modifying agreement, as where parties agree to extension of time of performance and act upon such agreement. 27 C.J. Stat. Frauds, 329, § 417. If arrangement by which term of an instrument which falls under statute of frauds is extended for more than year is not a contract within itself, but an independent agreement in nature of modified manner of a valid contract which itself complies with statute of frauds, it need not be in writing, though statute would otherwise require writing. Lehman, Durr Co. v. Marshall, 47 Ala. 362; Abbeville Live Stock Co. v. Walden, 209 Ala. 315, 96 So. 237; Messer v. Dupuy-Burke Realty Co., 226 Ala. 438, 147 So. 193; Woolen v. Taylor, 241 Ala. 316, 2 So.2d 413. Tender of balance of purchase money due on basis of contract alleged and proved is not essential to perfect purchaser's right to specific performance when it is shown that tender if made would have been refused by vendor as full payment. Stewart v. Cross, 66 Ala. 22; Campbell v. Lombardo, 153 Ala. 489, 44 So. 862; Saunders v. McDonough, 191 Ala. 119, 67 So. 591; Irvin v. Irvin, 207 Ala. 493, 93 So. 517.
This is an appeal from an interlocutory decree of the trial court overruling the appellant's demurrer to a bill for specific performance of an executory contract for the sale of certain real property.
The demurrer attacked the sufficiency of the bill on several grounds, but only two propositions are argued in brief. Discussion will, therefore, be limited to these.
The appellant contends that the bill shows on its face that the original contract of sale of the land was amended by several oral contracts; and that these oral contracts violating the statute of frauds are unenforceable, Alabama Code 1940, Title 20, § 3(1, 5), and therefore specific performance would be thereby precluded.
As we view it, the statute of frauds is not involved. From the allegations of the bill, the appellee is entitled to specific performance under the terms of the original contract.
The original contract is exhibited as a part of the bill. The vendor was to convey the land after final payment was made by the vendee. By the terms of the contract the vendor could, at his election by giving written notice to the vendee, declare the contract void and treat payments made as rent, if the vendee defaulted in her payments. The vendee alleges in her bill that she was not able to make the payments as they became due but that the vendor orally agreed to keep the contract in force until she could make the payments.
Disregarding the vendor's alleged oral agreement to keep the contract in force, the contract was extended by the vendor accepting from the vendee interest on the amount due after the last installment was due. The last installment fell due on October 15, 1952. Exhibit "B" to the bill, dated December 10, 1952, indicates that the vendor accepted from the vendee the amount of $500 "for interest on Loan." Receipt of money by the vendor from the vendee on an executory contract for the sale of real property is a renewal of the contract as to any past grounds of forfeiture. Salter v. Carter, 257 Ala. 216, 58 So.2d 454; Bessemer Coal, Iron Land Co. v. Bullard, 215 Ala. 433, 111 So. 5; France v. Ramsey, 214 Ala. 327, 107 So. 816; Jones v. Hert, 192 Ala. 111, 68 So. 259. Speaking of an executory contract for the sale of land somewhat similar to the contract before us now, this court in France v. Ramsey, supra, stated:
"Clearly there was a waiver of the forfeiture clause of the contract. Payment and receipt of purchase money on such contract is within itself a renewal of the contract as to any past ground of forfeiture. Payment on a contract per se implies the continued existence of the contract." — 214 Ala. at page 328, 107 So. at page 817.
The appellant's next point is that there was no tender. The contract having been renewed by the payment of interest, if there was a valid tender or excuse for non-tender after said renewal and prior to the appellant's election to declare a forfeiture, there could be no forfeiture. The written notice necessary to invoke a forfeiture was sent by the vendor to the vendee on August 15, 1955. The bill alleges that on August 12, 1955, which was three days prior to the attempted forfeiture, the vendee went to the home of the vendor "and orally offered to pay the balance owed if the Respondent would execute a warranty deed for the land to her. The Respondent refused to do so." Where an offer or demand to pay money or deliver property is declined in limine, actual tender is thereby waived. Tanner v. McClure, 259 Ala. 142, 148, 65 So.2d 709; Bankers' Mortg. Bond Co. v. Rosenthal, 226 Ala. 135, 138, 145 So. 456; Smith v. Thomas, 201 Ala. 442, 78 So. 820. Such is the status here where the appellant refused to carry out his part of the contract on offer of appellee to pay the amount due.
We find no error.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and SPANN, JJ., concur.