Dozier v. Troy Drive-In-Theatres, Inc., DRIVE-IN-THEATRE

• Decision Date: 14 June 1956
• Docket Number: I,DRIVE-IN-THEATRE,4 Div. 762
• Citation: 265 Ala. 93,89 So.2d 537
• Parties: L. L. DOZIER et ux. v. TROYnc.
• Court: Alabama Supreme Court

Page 537

89 So.2d 537

265 Ala. 93

L. L. DOZIER et ux. v. TROY DRIVE-IN-THEATRES, Inc.

4 Div. 762.

Supreme Court of Alabama.

June 14, 1956.

Rehearing Granted Sept. 13, 1956.

The agreement involved is as follows:

'Know All Men By These Presents, That we, L. L. Dozier and wife, Mary Nell Dozier have agreed to lease, and do hereby lease and rent unto M. H. Carter, the property herein described as follows:

'Nine acres of land located on the Troy-Brundidge Highway in front of the premises occupied by J. D. Grimes Cafe, said nine acres of land to be selected by the said M. H. Carter, and after the same is selected it is mutually agreed and understood that a survey of the same shall be made by a competent surveyor and said survey shall be attached as an exhibit and become a part of this agreement. Said survey is to be made at the expense of the said M. H. Carter.

'This lease is to commence on the day of its execution and to terminate ninety-nine years thereafter at and for a monthly rental of $30.00, commencing as of the day of the execution of this agreement, and one year's rent shall be paid in advance at the time of the execution of this agreement.

'This lease may be terminated by the said M. H. Carter, his successors or assigns, upon thirty days written notice to the Lessors: Upon said termination, the said M. H. Carter, his successors and assigns, shall have the right to remove any property placed thereon.

'The said M. H. Carter, his successors and assigns, shall have the option and right to buy said lands above described for the sum of $3,000.00 after said lease has been in effect for one year.

'The said M. H. Carter, shall have the right to sell and transfer all of his right, title and interest in this lease to any corporation in which he is a stockholder at the time of said transfer.

'The said M. H. Carter shall have the right to sublease the above described lands at any time during the term of this lease.

'It is further mutually agreed that any assignee of this lease who purchases the lands described herein shall not sell the same until L. L. Dozier has refused to buy the same for a period of thirty days for the sum of $3,000.00.

'It is further mutually agreed and understood that the lands hereinabove described shall be used for a Drive-In Theatre and for no other commercial purpose. It is further agreed that in case said property is used for any other commercial purpose, then the said L. L. Dozier shall have the right to repurchase said lands at any time within six months thereafter for the sum of $3,000.00 cash.

'It is further mutually agreed and understood that the agreement does bind the parties hereto, their heirs, executors and administrators, as well as the successors and assignees of any assignee thereof.'

Oliver W. Brantley and John C. Walters, Troy, for appellants.

E. C. Orme, Troy, for appellee.

PER CURIAM.

This is an appeal by defendants from a final decree in equity in which the court made declaration that the option contained in an agreement, therein referred to, was valid and enforceable; and then proceeded to decree a specific performance of it.

The bill of complaint was filed by appellee, as the assignee of the option referred to, against the grantor of the option, and sought declaration as to its rights under the option agreement and that it had exercised the option; but defendants claim it is void and unenforceable. The bill sought the supplemental relief of specific performance. The equity of the bill was sustained on former appeal. Dozier v. Troy Drive-in-Theatres, Inc., 258 Ala. 417, 63 So.2d 368.

The bill alleges that a lease with option agreement was made between defendants as lessors and M. H. Carter as lessee with the right by Carter to purchase at his option on the terms specified. The option agreement provided for an assignment of the lease by the lessee, and the assignee was to have the same rights. The lease together with the diagram attached were made exhibit 'A' to the bill. (The lease will be set out in the report of the case.)

The lease containing the option was dated August 25, 1949. On October 7, 1949 a survey was made by a competent surveyor of the nine acres, as authorized by the contract, and a copy of the survey attached to the contract. On October 11, 1949 Carter assigned the lease to this complainant. The lease with diagram attached were filed for record in the Probate Office of Pike County on October 12, 1949. There was no acknowledgment nor proof of execution as provided for in section 18, Title 47, Code.

Defendants and Carter, the lessee, agreed on the location of the nine acres. Complainant went into possession and constructed a drive-in-theatre, as contemplated by the contract, at a cost of approximately $40,000. Defendant Dozier visited the land often during construction. Carter paid defendants $360, as provided by the agreement, for the first year's rent as evidenced by check dated September 19, 1949. Carter, who was president of the complainant corporation, advised defendants by letter that he wanted to take up the option and buy the land.

It is not contended that the acceptance of the option was not a sufficient compliance with the requirements of the agreement. The only contention made by appellants is that the option agreement was void for reasons which we will now discuss. The first is that it is void for that it is within the statute of frauds. Title 20, § 3, Code. The theory of appellants in respect to the statute of frauds is that when the option is to purchase land to be selected afterwards by the purchaser, it is within the statute of frauds and void for failing to describe the land. The principle relied on is that to satisfy the statute of frauds, the contract for the sale of land must describe it with such certainty that it can be identified without the aid of oral evidence. Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Alabama Mineral Land Co. v. Jackson, 121 Ala. 172, 25 So. 709; Ezzell v. S. G. Holland Stave Co., 210 Ala. 694, 99 So. 78; Jones v. Pettus, 252 Ala. 12, 39 So.2d 12. But a general description may be made specific and certain by parol evidence of concurrent facts and circumstances sufficient to that end. Meyer v. Mitchell, 75 Ala. 475; Dobson v. Deason, 248 Ala. 496, 28 So.2d 418.

The case of Alabama Mineral Land Co. v. Jackson, supra, is relied upon by appellants in this connection. It was a suit at law by the seller against the purchaser for the breach of a contract whereby plaintiff was to sell "timber from a continuous block of ten thousand acres, consecutive sections, in a northwesterly line from Maplesville, townships 21 and 22,' the purchaser to determine upon a continuous body of lands, mineral lands excepted, and to designate the same to seller on a day named'. The purchaser failed to designate the land contemplated and failed to make the payments provided for in the writing. The reasoning of the decision is closely confined.

With respect to an option, the case of Wilkins v. Hardaway, 173 Ala. 57, 55 So. 817, differentiated the Jackson case, supra, by observing that in it there was no exercise of a right of option, and no designation of the lands. In the Wilkins case the particular land involved was to be determined by a survey which was to be made, followed by an exercise of the option. Nothing was said about the necessity of a writing designating the land. In the Wilkins case the Court expressed the view that Howison v. Bartlett, 141 Ala. 593, 37 So. 590, and Alabama Central R. Co. v. Long, 158 Ala. 301, 48 So. 363, 364, were more in point, since there was in it an exercise of the option and designation of the lands. In the Long case defendant agreed to execute a deed conveying 'such lands as may be in actual use or occupancy by it on the completion of its roadbed over' certain described land. In a suit for specific performance, the statute of frauds was pleaded on the authority of the Jackson case, supra. The Court observed:

'It will be borne in mind that the terms of the agreement involved do not require that the deed shall be made until a day in the future, when and at which time the lands to be conveyed will be definitely located and ascertained with certainty. In other words, the performance of the contract by Long is postponed until the happening of a future event, to wit, the completion by the complainant of its roadbed over certain described lands and its actual use or occupancy of such lands. The bill avers the happening of this event in specific terms. Therefore, according to the terms of the contract, by resort to these facts, extrinsic of the writing, but referred to therein, those lands to which the deed is agreed to be made are rendered certain; and at the time the action of ejectment was commenced, and when the bill here was filed, they were susceptible of being accurately described. The contract was conditional until the complainant completed its roadbed over the quarter sections described therein and was in the actual use and occupancy thereof. Then it became absolute, and fixed upon the contractor, Long, the duty to make to the complainant a deed to 'such land as was in the actual use and occupancy of the complainant' in the quarter sections described in the contract. These lands having been made certain, and that, too, by resort to matters referred to in the contract, the statute of frauds presents no obstacle to a specific performance of the contract.'

In the case of Howison v. Bartlett, supra, it is said: 'Though the contract does not of itself indicate with certainty the quantity or precise location of [the land intended to be sold, if] the description given * * * renders the property capable of identification by means of a survey', such contract if otherwise valid, can be specifically enforced.

In the case of Meyer v. Mitchell, 75 Ala. 475, the contract was to sell 'fifty acres Comida and Cone bottom, also ten acres hillside woodland adjoining the Mitchell tract'. The Court...