Ex parte Banks
| Citation | 64 So. 74,185 Ala. 275 |
| Parties | Ex parte BANKS. |
| Decision Date | 18 December 1913 |
| Court | Supreme Court of Alabama |
Action by the Phillips-Neely Mercantile Company against T.C. Banks. A judgment for defendant was reversed by the Court of Appeals (63 So. 31), and defendant petitions for certiorari. Writ denied.
Goodhue & Brindley, of Gadsen, for appellant.
J.R Forman, of Gadsen, for appellee.
DE GRAFFENRIED, J.
In the ease of Flinn v. Barber, 64 Ala. 193, this court held that contracts violative of the provisions of our present statute of frauds are void. On that subject this court in that case, speaking through Brickell, C.J., said
The above-quoted excerpt is, in spite of some loose expressions to be found in some of the later decisions of this court in which such contracts are referred to as being merely voidable, a correct exposition of the law of this state, on the subject under discussion, as it exists today. Prestwood v. Carlton, 162 Ala. 342, 50 So. 254.
(2) While the above is true, this court has uniformly held that only parties, or their privies, to contracts void because violative of the statute of frauds, can show their invalidity. Prestwood v. Carlton, supra; Bain v Wells, 107 Ala. 562, 19 So. 774.
(3) This court has also uniformly declared that, unless the invalidity of the contract by reason of its violation of the statute of frauds is specially pleaded, such defense will be held to be waived. In other words, this court has uniformly held that even a party to a contract void because violative of a provision of the statute of frauds must, to avail himself of the invalidity of the contract, specially plead its invalidity because violative of the statute. Prestwood v. Carlton, supra.
(4) When a suit is instituted against a party to a contract void because violative of some provision of the statute of frauds, and the complaint in the cause shows that the contract is void because violative of the statute of frauds, such party to such contract may, by demurrer, make the above special defense. Prestwood v. Carlton, supra; Strouse v. Elting, 110 Ala. 132, 20 So. 123.
(5) It was pointed out by this court, speaking through Brickell, C.J., in the case of Bain v. McDonald, 111 Ala. 269, 20 So. 77, that an unexecuted contract, void because violative of the statute of frauds, conferred no rights upon any party. In that case, however, the special defense of the statute of frauds was properly pleaded by a party to the contract who, under the above rules, had a right to interpose the particular defense. If, in that case this court had held that the contract was merely voidable and not void by reason of its violation of the statute of frauds, then, in that ease, under the facts, this court would have held that the defendant was liable under his contract of rental and not that he was only liable for use and occupation.
An analysis of the opinion in Bain v. McDonald, supra, will disclose the fact that, while the operation of the statute of frauds, in declaring certain contracts to be void, is restricted to cases in which the parties to such contracts or their privies, by a special pleading, properly invoke the benefits of the statute, nevertheless, when so properly invoked, such contracts, being absolutely void, can be held to confer no rights upon any person. In other words, our present statute of frauds, under the decisions of this court--and the line of decisions upon that subject is unbroken--furnishes to the parties, and their privies, and to no other person, the right, by special plea, to show that an unexecuted contract is void and of no effect whatever because violative of some particular provision of the statute. Under the decisions of this court the statute of frauds furnishes to the parties, or their privies, to an unexecuted contract which is violative of some provision of the statute of frauds, a personal defense which they may or may not make at their election. Prestwood v. Carlton, supra. When the defense is properly invoked by a proper party, then the courts hold the contract to be absolutely void. When not properly invoked by the proper party, the invalidity of the contract is available to no one. Prestwood v. Carlton, supra.
(6) At common law an usurious contract...
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Landcastle Acquisition Corp. v. Renasant Bank
...used the words voidable and void indiscriminately’ " when referring to contracts. Ruan , 796 F. App'x at 675 (quoting Ex parte Banks , 185 Ala. 275, 64 So. 74, 75 (1913) ).Fourth, many have lamented that courts imprecisely use "void" where "voidable" is meant. For example, Black's Law Dicti......
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Belfance v. Shelton (In re Shelton)
..., 194 F.2d 430, 432 (5th Cir. 1952). When an act is void, however, it is "entirely destitute of legal effect." Ex Parte Banks , 185 Ala. 275, 279, 64 So. 74 (Ala. 1913). The Alabama Supreme Court in Banks admonished that "judges ... have frequently used the words ‘voidable’ and ‘void’ indis......
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Dairy Fresh Corp. v. Poole
...Co., 456 So.2d 1065, 1067 (Ala. 1984). A voidable agreement results in a contract, while a void agreement is a nullity. Ex Parte Banks, 185 Ala. 275, 64 So. 74 (1913). Thus, even if there was a mistake, the transaction was merely voidable, which means that the disputed shares belong to the ......
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