Under section 2 of the contract, appellant as the first party had the right to terminate the lease upon thirty days' notice. Under section 4 this right was not to be exercised unless "they have a bona fide offer of sale." In that event appellee was to have an option of thirty days after such notice to buy the property. The option was irrevocable except as expressed in it. Ross v. Parks, 93 Ala. 153, 8 So. 368, 11 L.R.A. 148, 30 Am. St. Rep. 47; Johnston v. Guice, 217 Ala. 27(6), 114 So. 409.
We do not find that the statement in the notice by appellant of January 26, 1939, that "we have a sale for the property," is supported by proof that they had a bona offer of sale as set forth in the contract. That is the only condition on which appellant can terminate the lease and option as expressed in it. But assuming that the condition on which the right to terminate as expressed in paragraph number 4 had occurred on January 26, 1939, when the notice was given, the situation would still not be sufficient to prevent relief to appellee by coming into court and filing this bill within thirty days after January 26, 1939.
Appellant contends that in the original bill, there is no election declared by appellee to buy the property except upon a condition not expressed in the contract: that is, upon delivery of an abstract showing good and merchantable title.
We assume appellant is referring to paragraph number 5 of the bill in which it is alleged that on January 27, 1939, notice with that condition was given to appellant. That allegation is merely expressing the terms of that notice. But in paragraph number 7 of the bill appellee makes the unqualified offer to exercise the option and to pay the said $1,200, and in all respects *Page 285 to do equity. The condition named in the notice of January 27, 1939, is not here repeated. The bill with such unqualified offer filed within thirty days after the notice complies with the duty of appellee to exercise the option made more specific by a subsequent amendment striking out paragraph number 5.
The contention of appellant in this respect cannot therefore be sustained.
Appellee in his reply brief asks us to modify our opinion and judgment so as to relieve him of the payment of interest on the authority of Pearce v. Third Avenue Imp. Co., 221 Ala. 209,128 So. 396. In that case the vendors remained in possession of the land pending the litigation and received rents. The interest on the purchase price aggregated many times the amount of rents so collected. The vendors by a noncompliance deprived the vendees of the opportunity to improve the property and enhance the rental value, and enjoy its possession. The court found that it would be equitable to charge the vendee with no more interest than the amount of rents collected by the vendor, and therefore charged neither interest nor rents.
In the instant case the lot was vacant as purchased, with a stipulation for $25 as rent for the year which was paid in advance, and the vendee let into possession. Paragraph numbered 5 stipulated that if the (vendee) appellee should desire to become the purchaser of the property, he "will not be required to make any refund of the rent paid." When he filed his bill, failing to bring into court the purchase money, he was already in possession, and he thereby established himself as the purchaser in possession whose rights were thereby fixed though not then decreed. He could, and possibly did, improve the property at once as he saw fit; his right as tenant ended and began as the owner in possession, and the right of appellants was then and there complete to the $1,200 offered to be paid but not by a tender kept good. And by a later amendment he sought to reduce the amount of it by the value of an casement to which we have referred. Appellee thereby put in issue the true amount due to be paid, and this issue is decided against him, fixing the stipulated sum as due to be paid as of the date of filing the bill. This was not then paid nor brought into court. He is not therefore in position to be relieved of interest, and since pending the litigation he has had possession with complete right of enjoyment as the purchaser after this bill was filed, his status is not on the same equitable basis as existed in Pearce v. Third Ave. Imp. Co., supra.
Application for rehearing denied.
All the Justices concur.