Appeal from a final decree denying the relief sought by complainant and dismissing its bill of complaint which sought to set aside a forfeiture of a lease dated September 1, 1953.
The property, a lumber mill site, was leased for $900 per year, payable $75 monthly in advance, with the right and option to renew from year to year for a period of not exceeding fifty years. Practically all improvements were on the leased premises when the lease was executed. The lease provided, in section 4, that:
Appellant sub-leased the property to a corporation which was forced into bankruptcy. The leased property was not used except for storage from April, 1958, to March, 1959. The rent for June, July and August, 1957, was paid on September 6; the rent for September and October was
On January 8, 1959, the rents being unpaid for November and December, 1958, appellees notified appellant that they had elected to declare the lease terminated for failure to pay the rent as provided in the lease. Appellant sent a check for all back rent due but its check was refused and returned.
On February 13, 1959, appellees notified appellant to deliver possession to them. Appellant's president requested appellees to purchase certain roofing and building materials which appellant had purchased to repair one of the rented buildings but had not yet used. Appellant asked and appellees paid $1,241.52 for the materials and, thereupon, appellant delivered possession to appellees on March 23, 1959. Shortly thereafter, appellant instructed the county tax officials to drop from its tax assessment improvements on the leased premises which it was required to assess under the lease.
On March 27, 1959, appellees leased the same property to Thomas Veneer Co. for $200 per month, beginning May 1, 1959, and appellant had knowledge of this lease. Nearly two years later, this suit was filed on April 8, 1961.
The trial court filed a written opinion, a part of which reads:
This finding demonstrates that the unjust and inequitable features that were present in Humphrey v. Humphrey, 254 Ala. 395, 48 So.2d 424, and cases there cited, which are relied upon by appellant, are not present here.
The evidence supports the finding of the trial court, that there was a forfeiture of the lease in accordance with its provisions, that there was a fair and voluntary surrender of the leased premises to the lessors and an absence of proof justifying the setting aside of the forfeiture, and its decree will not be overturned unless plainly in error.
Much of appellant's argument is devoted to the finding of the trial court that appellees' plea "A" (as part of their answer) was a good defense. This part of the answer set up estoppel on the ground that appellant had voluntarily abandoned the lease and the property upon the purchase by appellees
It is not necessary that we decide the question of estoppel because, as already stated, the evidence supported the finding of the court quoted supra.
We find no reversible error in the decree of the trial court as challenged by the argued assignments of error.
LIVINGSTON, C. J., and SIMPSON and HARWOOD, JJ., concur.