Eason v. Roe

• Court: Alabama Supreme Court
• Writing for the Court: SAYRE, J.
• Citation: Eason v. Roe, 185 Ala. 71, 64 So. 55 (Ala. 1913)
• Decision Date: 04 December 1913
• Parties: EASON et al. v. ROE et al.

64 So. 55

185 Ala. 71

EASON et al. v. ROE et al.

Supreme Court of Alabama

December 4, 1913

Appeal from City Court of Talladega; M.N. Manning, Special Judge.

Suit by R.R. Roe and another against R.B. Eason and others. Decree for complainants, and defendants appeal. Affirmed.

M.M. &amp Victor Smith, of Pell City, for appellants.

Knox Acker, Dixon & Sims, of Talladega, for appellees.

SAYRE J.

This bill was filed by R.R. and William Roe against the heirs at law of J.M. Eason, and sought a decree in the nature of a decree for the specific performance of an alleged contract by which the said Eason had agreed to convey to complainants a certain tract of land in Talladega county. Eason's personal representative was also made a party defendant. Complainants further prayed that an action of ejectment brought by defendants, be enjoined pending the suit in equity. Complainants had relief in the court below, and defendants appeal.

The bill, to state those parts of it about which the controversy turns, avers that complainants entered into an agreement with the ancestor of defendants for the purchase of the land on January 31, 1906; that the agreed purchase price was the sum of $900 to be paid $100 presently, the balance in installments of $200, due, respectively, on November 15th in the years 1906, 1907, 1908, and 1909; that "under and by the terms of said agreement or contract, upon the payment of said purchase price, the said J.M. Eason was to execute to complainants a deed conveying to them the title to said lands"; and that the cash payment was made as agreed complainants being put into possession.

In a subsequent paragraph of the bill it is averred that at the time of the first payment Eason signed and delivered to complainants "the following written agreement," namely: "Received of R.R. Roe $100 on land purchased of J.M. Eason this day, which leaves of said purchase money yet $800 yet secured by notes and a mortgage on said land. This 31st day of January, 1906. [ Signed] J.M. Eason."

In the court below no objection was taken by demurrer to the form or equity of the bill. In this court defendants look for help mainly to those numerous adjudications which hold that in suits for specific performance the terms of the contract must be definitely and distinctly averred, as well as proved, to the end that the court be not left to uncertain inference in determining the rights of the parties. This objection is jurisdictional in its nature and may be considered, though taken for the first time on the submission for decree upon the facts alleged and proved, and so defendants insist that the averment of the receipt with its recitals, to which complainants refer as an agreement in writing, is an averment of a contract variant from that which we have above stated to be the contract upon which the complainants are proceeding for relief. But we do not take that to be the effect of the averment. Evidently complainants expected a defense under the statute of frauds, and it may be conceded that in framing their bill they showed some indecision as to the grounds upon which their contract was to be taken without the inhibition of the statute. There could be no harm, however, in meeting the anticipated defense on either or both grounds, provided, of course, the averment made to that end did not introduce a fatal uncertainty into the bill as to the essential terms of the contract itself. We do not find that the bill, in respect to the matter under consideration, is repugnant to, or variant from, itself, or that the contract alleged is so uncertain as to preclude the propriety of an equitable decree for its specific performance.

The receipt, if it be taken as a memorandum of the contract elsewhere alleged in the bill, is an incomplete and insufficient memorandum, and it may be that complainants must have failed in their suit if they had depended upon it alone to take their case without the statute of frauds; but the other answer to the statute, viz., that complainant had paid a part of the purchase money and had been let into possession, was perfect in the matter of averment and, as we shall see, in matter of fact. The averment as to the receipt, memorandum, or agreement in writing, in that part of it which refers to "notes and a mortgage," may be taken as a recital that the balance of the purchase money was secured by notes and a mortgage already executed and delivered; if so, it rested upon a misapprehension of the effect of what had been done, and was untrue in law and fact; or it may have been intended to witness an agreement that notes and a mortgage would thereafter be executed and delivered; if so, defendants by their subsequent dealing waived its performance. The substance of the alleged contract in any event was that complainants were to pay a certain price for the land, retaining the title as security for deferred payments, and that complainants, upon full payment, were to receive indisputable muniment of the rightfulness of the possession upon which they entered at once.

On the facts the case appears to be plain enough. Appellants defendants below, complain of some of the witnesses that their professed recollection of occurrences and conversations, some four or five years past, and concerning a transaction of no particular interest to them, is unduly circumstantial, and of some of them that their testimony is so biased by their relation to the parties as to be untrustworthy. To our minds the testimony of most, if not all, of the witnesses is characterized by unusual candor, and apart from some details, where their differences do not touch the essential equities of the controversy and seem to earmark the truth of what they say, their testimony is practically...