Christian v. Rabren

• Decision Date: 08 February 1973
• Citation: 273 So.2d 459,290 Ala. 45
• Parties: Theresa R. CHRISTIAN et al. v. Tom RABREN. SC 56.
• Court: Alabama Supreme Court

Page 459

273 So.2d 459

290 Ala. 45

Theresa R. CHRISTIAN et al. v. Tom RABREN.

SC 56.

Supreme Court of Alabama.

Feb. 8, 1973.

Rehearing Denied March 8, 1973.

James M. Prestwood, Andalusia, for appellants.

Tipler, Fuller & Barnes, Andalusia, for appellee.

JONES, Justice.

The respondents, Theresa R. Christian and her husband, J. M. Christian, appeal from a decree granting to the vendee specific performance of an alleged contract for the sale of land.

The pertinent facts are as follows:

W. J. Franklin was the owner of some 167 acres of land situated in Covington County, Alabama, of which he deeded 40 acres (sometimes referred to as 38 acres, more or less) to his daughter, Theresa Christian. The remaining 127 acres (or the remaining 86 acres as hereinafter discussed) passed at his death, intestate, to his three children, Wilbur Franklin, Mrs. Theresa Christian and Mrs. Athy Schlimer, as tenants in common, subject to his widow's right to dower and homestead. The appellee, Tom Rabren, wanting to buy the 127-acre tract and willing to take title subject to the widow's life interest, had his attorney draw up an option agreement between Rabren and the three children of W. J. Franklin and their spouses. However, Mrs. Schlimer and her husband lived in New York and had never expressed any desire to become a party to the option agreement. On March 25, 1969, the option agreement was presented to Mr. and Mrs. Wilbur Franklin and Mr. and Mrs. Christian for their signatures. In the acknowledgement section of the agreement the notary, Albert Elmore, had crossed through the Schlimer's names before it was signed by the Franklins or the Christians.

The option agreement provided that, for the consideration paid ($5.00), Rabren could purchase the described 127 acres at any time within twelve months for $9,200.00. Within the said twelve-month period Rabren notified the Franklins and the Christians in writing and orally that he intended to exercise his option and purchase their respective interests in the property. Rabren had been in correspondence with the Schlimers and their decision not to sell remained unchanged. Rabren concluded that he must settle for a two-thirds interest. The Franklins readily signed a deed conveying their one-third interest in the property to Rabren for $2,076.61, being the agreed value of his interest, rather than one-third of the option purchase price of $9,200.00. This was explained (though somewhat vaguely) by Rabren and Franklin to the general effect that Rabren learned for the first time after the execution of the option on March 25, but before the date of trial, that the widow, in addition to her life interest, was the fee owner of 41 acres of the 127-acre tract, the subject of the option.

The Christians, however, refused to convey their interest even upon tender of a certified check for $3,066.67, being exactly one-third of the agreed price for the whole 127 acres. The Christians claimed the option was void and not binding on them. Hence, Rabren commenced this action seeking specific performance of the option agreement.

At the trial below, Mrs. Christian testified that it had been her understanding that when the land was sold to Rabren, the money ($9,200.00) would be placed in a trust fund to provide for their mother. When she learned that Wilbur Franklin intended to keep his share for himself and that her sister, Athy Schlimer, would not sell at all, Mrs. Christian refused to honor the option agreement. Rabren testified, on the other hand, that he knew nothing about any proposed trust agreement, and Wilbur Franklin said the only reason he knew why his sister (Mrs. Christian) had refused to sell was that she had changed her mind. There was no mention of any trust fund in the option agreement signed by the Christians.

After a hearing ore tenus, the trial court in its final decree filed January 28, 1972, found as follows:

'. . . that the respondents executed for consideration Exhibit 'A' . . . whereby the respondents agreed to sell and convey to the complainant the lands made the subject of the suit . . .

'. . . that within the term of said option the complainant notified the respondents of his decision to exercise said option, tendered to the respondents the sum required for the exercise thereof and requested and demanded that the respondents execute a deed as required by said option. The Court further finds that the respondents without just cause failed and refused . . . to execute conveyance of their interest within thirty days after said option was exercised by the complainant . . .'

The court decreed that respondents (Christians) specifically perform the option within twenty days by '. . . executing and delivering to the Register of this Court for delivery to the complaint a warranty deed conveying Their undivided one-third interest to complainant in the lands . . .' (Emphasis ours.)

The court further decreed that should the Christians fail to comply with the decree within the time allowed, Rabren is the rightful owner of all the interest of the Christians in the land, and the register is directed to execute and deliver a deed conveying said property to Rabren.

On February 25, 1972, the Christians filed application for rehearing, setting forth, among other grounds, that the testimony established that the widow of W. J. Franklin has 'complete ownership of forty acres' of the land involved in the 127-acre tract, and attached thereto a copy of a 1925 deed by which 41 acres, more or less, was conveyed by W. J. Franklin to his wife, L. B. Franklin.

After a hearing, the court on April 11, 1972, rendered a decree as follows:

'. . . the Court . . . is of the opinion that the decree entered in this cause on the 28th day of January, 1972, . . . should be amended to require the Respondents (Christians) to deliver to the Complainant (Rabren) a warranty deed conveying Their interest in the property hereinafter described and as described in the original decree within twenty days from the date of this amended decree and failing therein that the Register . . . present to the Covington County Bank a certified check which was introduced in this cause payable to the Respondents . . . endorse the same . . . and upon receipt of . . . $3,066.67, execute a Register's deed conveying to the Complainant All interest of the Respondents in and to the lands . . . Or any interest which they might hereafter acquire in said lands. (Emphasis ours.)

'IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that within twenty days from the date of this decree that the Respondents execute a warranty deed to the Complainant conveying the following described lands to-wit:

'. . .

'and deliver the same to the Register of this Court for delivery to the Complainant and the Register is hereby directed to deliver to the Respondents the certified check which was introduced in the evidence in this cause.'

The appellants, Mr. and Mrs. Christian, assign error as follows:

'1. The Court erred in overruling the demurrer of the Appellants filed April 27, 1971 to the bill of complaint as amended.

'2. The Court erred in its decree on the application for rehearing by ordering the Appellants to execute a warranty deed to the lands described in the decree and, without specifying the limited, undivided interest of Appellants, and in the same decree the Court also erred in ordering the Register to convey any After acquired interest of Appellants in the described lands, in the event the Appellants failed to deliver a deed to the Register conveying the Whole interest in the whole tract.

'3. The Court erred in decreeing specific performance on an instrument that is unenforceable on its face.

'4. The Court erred in ordering specific performance on an alleged option which the Appellee himself acknowledged was incorrect and that he subtracted 41 acres from the original option, for the purpose of computing the value of the land but did not eliminate the 41 acres from the tract description in the instrument executed March 25, 1969.'

In addressing ourselves to appellants' first assignment of error, a brief recital of the pleadings may be helpful.

The portions of the original bill here pertinent are:

'. . . Respondents executed an option to sell certain real estate, a copy of said option is attached hereto and made Exhibit 'A' . . .

'. . . Complainant has notified the Respondents of his decision to exercise said option . . . has demanded that the Respondents execute a deed as required by said option; . . . has tendered the money to the Respondents; that your Respondents have failed and refused to comply with the terms of said option.

'. . . Complainant has been, and is now ready to comply . . . (and) offers to do equity.

'The PREMISES CONSIDERED, your Complainant prays . . .

'. . . that the Court enter an order directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate.

'Complainant prays for such other general and special relief . . .'

The trial court sustained respondents' demurrer to the original bill, and complainant within the time allowed amended his complaint by adding the following averment and prayer:

'. . . that the Respondents own an undetermined interest in said property . . .

'. . . prays that this Court will determine the interest in said property of the Respondents and will abate the purchase price to be commensurate with the interest of the Respondents.'

The court overruled respondents' demurrer to the amended bill, and this ruling is assigned as error.

After a careful review of appellee's bill as amended, with the option agreement incorporated therein by reference, we are at the conclusion that appellants' demurrer to said bill was properly overruled by the trial court. Our decisions have followed the rule that a complainant's right to equitable relief must be shown with sufficient certainty to enable the court to see ...