Barnes v. White

• Decision Date: 10 February 1916
• Docket Number: 4 Div. 572
• Citation: 195 Ala. 588,71 So. 114
• Parties: BARNES v. WHITE et al.
• Court: Alabama Supreme Court

71 So. 114

195 Ala. 588

BARNES v. WHITE et al.

4 Div. 572

Supreme Court of Alabama

February 10, 1916

Appeal from Chancery Court, Covington County; Ed T. Albritton Chancellor.

Suit by William R. Barnes against Frank White and others. From an adverse decree, complainant appeals. Affirmed.

Jones &amp Powell, of Andalusia, for appellant.

Baldwin & Murphy, of Andalusia, for appellees.

MAYFIELD J.

This is a bill of specific performance to convey land, where there is no written contract or even memorandum of the terms of sale. The bill is sought to be maintained under the exception mentioned in the statute of frauds; that is, on the ground that a part of the purchase price was paid, and the vendee was put in possession of the lands agreed to be conveyed. The bill is not filed by a party to the contract nor against a party to the contract to convey. It is filed by the vendee of one party to the contract against the heirs of the other party. It is filed more than ten years after the date of the alleged contract to convey. One of the parties to the contract had been dead for more than ten years before the bill was filed.

What was said by Stone, J., in Pike v. Pettus, 71 Ala 99, 100, is conclusive of this case:

"In Waterman on Specific Performance, § 265, it is said 'The parol agreement must be clearly proved, in order to take it out of the statute by part performance. *** Equity will not enforce specific performance of a parol agreement, if the evidence of such agreement is contradictory.' And in 1 Sto.Eq.Jur. § 762, it is said: 'In order to make the acts such as a court of equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed. For, if they are acts which might have been done with other views, they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement.' After mentioning certain acts which are insufficient, this author proceeds to say that it is not enough when the proof only shows acts of an equivocal nature, but that, to be deemed a part performance, the acts 'should be so clear, certain, and definite in their object and design as to refer exclusively to a complete and perfect agreement of which they are a part execution.' "

To entitle a complainant to specific performance of such contracts, the terms must be distinctly alleged, and established by clear and definite testimony; and, if the proof fails to establish the contract as alleged, or if any of its terms are left in doubt or uncertainty, specific performance should not be decreed. Aday v. Echols, 18 Ala. 353, 52 Am.Dec. 225; Goodwin v. Lyon, 4 Port. 297; Ellis v. Burden, 1 Ala. 458.

The evidence in this case is far from being certain and definite as to the terms of such contract as is sought to be enforced. Every material allegation is denied by allegation and proof. One of the parties to the contract is dead, and the other, of course, is incompetent to testify as to the transaction which he had with the deceased party when the heirs of the latter are interested in the suit. What was said in the case of Boykin v. Smith, 65 Ala. 299, is conclusive as to the competency of Will White to testify as to the...