Formby v. Williams

• Decision Date: 10 April 1919
• Docket Number: 7 Div. 951
• Citation: Formby v. Williams, 203 Ala. 14, 81 So. 682 (Ala. 1919)
• Parties: FORMBY v. WILLIAMS.
• Court: Alabama Supreme Court

81 So. 682

203 Ala. 14

FORMBY v. WILLIAMS.

7 Div. 951

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Calhoun County; Hugh D. Merrill, Judge.

Action by John F. Williams against R.L. Formby.Judgment for plaintiff, and defendant appeals.Affirmed.

Ross Blackmen and Willett & Walker, all of Anniston, for appellant.

Knox Acker, Dixon & Sterne, of Anniston, for appellee.

THOMAS J.

The action was unlawful detainer, and judgment was in favor of plaintiff in the justice court.The defendant's appeal to the circuit court resulted in judgment for the plaintiff from which this appeal is prosecuted.

The controverted question of fact was whether plaintiff had contracted with defendant for the rental of lands involved for 1918.That the relation of landlord and tenant existed between the parties in 1917 is not disputed.

In the trial plaintiff was asked on cross-examination the date of his first intimation as to when defendant"was going to deny the ten bales of cotton as rent" for 1917.He replied: "On November 7th, the same day I sold him the mules."Defendant's counsel asked when he(defendant) was to pay this debt; and the witness inquired "That mortgage?"Defendant's counsel asked whether it was intended that the debt evidenced by the mortgage should not mature until November 15, 1918.The court sustained objection--the mortgage being the better evidence--and exception was reserved.Defendant's counsel stated that he wanted to ask the witness if it was not a fact that this mortgage (dated November 7, 1917) was not to mature until November 15, 1918.Plaintiff objected on the ground that the evidence was irrelevant.Defendant again presented the question by asking the witness what was the agreement as to the time the debt secured by this mortgage should mature and in support thereof said: "This paper for the mules is dated November 7, 1917, and payable on or before November 15, 1917.*** Now, it is entirely competent to show by Mr. Williams *** that the consideration of this mortgage was the purchase price of those mules, and that the payment of the purchase price *** was not to have been made until November 15, 1918, as going *** to corroborate Mr. Formby in his statement that the mules were sold to him by Mr. Williams for a certain purpose"--to cultivate the land in question.

The court sustained objection to the effort to vary the due date of the mortgage by parol.

The primary question for decision is whether under the statute of frauds defendant's alleged parol contract for rent of the land for 1918 was valid.If invalid, plaintiff was entitled to the affirmative charge; and the exceptions reserved on exclusion of evidence seeking to vary the due date of the mortgage, if well taken, would not avail defendant.The provisions of our statute to prevent frauds and perjuries, applicable to this inquiry, are as follows:

"In the following cases, every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing: (1) Every agreement which, by its terms, is not to be performed within one year from the making thereof.*** (5) Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller."Code 1907, § 4289.

The exception from the statute of parol contracts for sale of lands--when the purchase money, or a part thereof, is paid and the purchaser is put in possession of the land by the seller--has long been recognized by the courts.The expressions, "payment of purchase money" and "purchaser be put in possession of the land by the seller," have been the subject of much judicial discussion.It has been declared that:

(1) The part performance by a vendee or lessee must have been with the "consent" of the party to be charged, or with his "knowledge" from which his consent is implied.Danforth v. Laney,28 Ala. 274, 278;Brock v. Cook, 3 Port. 464;Allen v. Booker, 2 Stew. 21, 25, 119 Am.Dec. 33;Arrington v. Porter,47 Ala. 714, 721;Houston v. Hilton,67 Ala. 374, 377;Heflin v. Milton,69 Ala. 354, 357;Brewer v. Brewer,19 Ala. 481, 488;Spies v. Price,91 Ala. 166, 168, 169, 8 So. 405;Manning v. Pippen,95 Ala. 537, 542, 11 So. 56;Shakespeare v. Alba,76 Ala. 351, 356;Linn v. McLean,85 Ala. 250, 4 So. 777;McLure v. Tennille,89 Ala. 572, 8 So. 60;Bain v. Wells,107 Ala. 562, 571, 19 So. 774;Williams v. Morris,95 U.S. 444, 456, 457, 24 L.Ed. 360;9 Rose's Notes, pp. 283-285;Grant v. Naylor, 4 Cranch, 235, 2 L.Ed. 603;Browne on Statute of Frauds, §§ 468, 469, 483.

(2) The delivery of possession must be by one who has that possession, either actual or constructive to deliver.McKinnon v. Mixon,128 Ala. 612, 617, 29 So. 690;Danforth v. Laney, supra;Linn v. McLean, supra.And the taking of the possession must not only be "notorious" and "exclusive" in character, but, to avail such purchaser or tenant in the specific performance of his right or title so asserted, the possession must be continuous.Allen v. Booker, supra;Cummings' Heirs v. Gill's Heirs,6 Ala. 562, 564;Chambliss v. Smith,30 Ala. 366;Brewer v. Brewer, supra;Hawkins v. Hudson,45 Ala. 482, 494, 495;Price v. Bell,91 Ala. 180, 8 So. 565;Spies v. Price,supra, 91 Ala. 168, 169, 8 So. 405;Trammell v. Craddock,93 Ala. 450, 452, 9 So. 587;Dahm v. Barlow,93 Ala. 120, 124, 9 So. 598;Linn v. McLean,supra, 85 Ala. 250, 253, 4 So. 777;McLure v. Tennille, supra;Riggles v. Erney,154 U.S. 244, 254, 14 Sup.Ct. 1083, 38 L.Ed. 976;Ducie v. Ford,138 U.S. 587, 594, 11 Sup.Ct. 417, 34 L.Ed. 1091;Purcell v. Miner, 4 Wall. 513, 517, 18 L.Ed. 459;6 Rose'sNotes, 628-630;Browne on Statute of Frauds, §§ 469, 471, 473, 474, 478, 485;Reed on Statute of Frauds, § 562, p. 196x.Abandonment by purchaser or tenant will not defeat recovery by the vendor or landlord of purchase money or rents under an executed contract.Shakespeare v. Alba, supra;Steadham v. Parrish,93 Ala. 465, 9 So. 358;Dahm v. Barlow, supra;Eubank v. May & Thomas Co.,105 Ala. 629, 632, 17 So. 109;A.G. Rhodes Fur. Co. v. Weeden & Dent,108 Ala. 252, 255, 19 So. 318.It is further required of the possession taken by a vendee or lessee that it be contemporaneous with or immediately consequent upon the parol contract and in pursuance thereof, which facts must be established by proof clear, unequivocal and definite in terms. 2 Story's Eq. Jur. (14th Ed.) § 1050, and many authorities;Aitkin v. Young,12 Pa. 24.

(3)The acts of part performance must refer exclusively to the contract sought to be enforced and be such as would not be done but for the latter.Shakespeare v. Alba, supra;Linn v. McLean, supra;McLure v. Tennille, supra;Bain v. Wells, supra;Pike v. Pettus,71 Ala. 98;Brock v. Cook,supra, 3 Port. 464;E.T.V. & G.R.R. Co. v. Davis,91 Ala. 615, 619, 8 So. 349;Cummings v. Gill, supra;Danforth v. Laney,supra, 20 Ala. 278, and authorities;Chambliss v. Smith, supra;Frame v. Dawson,14 Ves. 385, 387;Arrington v. Porter, supra;Brewer v. Brewer, supra;Wilmer v. Farris, 40 Iowa, 309, 310;Browne's Statute of Frauds, § 476;Reed on Statute of Frauds, § 570.That is to say, acts of part performance cannot be explained consistently with any other contract than the one alleged.Danforth v. Laney,supra, 20 Ala. 274, 275;Linn v. McLean, supra;Pike v. Pettus,71 Ala. 98;Irwin v. Bailey,72 Ala. 467;2 Story's Eq.Jur.(14th Ed.) § 1048;Byrne v. Romaine, 2 Edw.Ch.(N.Y.) 445, 446;Jervis v. Berridge,42 N.J.Ch. 518; Lindsay v. Lynch, 2 Schoales & Lefroy, 1, 7;Strehl v. D'Evers,66 Ill. 77, 79;McFarlane v. Dickson, 13 Grant, Ch. 263, 277;Sitton v. Shipp,65 Mo. 297, 298.Neither possession without payment of the whole or a part of the purchase money, nor payment without letting into possession, will meet the requirements of the statute.Heflin v. Milton,69 Ala. 354;Manning v. Pippen, supra;Allen v. Booker, supra;Carroll v. Powell,48 Ala. 298, 302;Dahm v. Barlow, supra;Shakespeare v. Alba, supra;McMahan v. Jacoway,105 Ala. 585, 17 So. 39;McKinnon v. Mixon, supra;Glass v. Hulbert,102 Mass. 24, 3 Am.Rep. 418;Browne on Statute of Frauds, § 470.Both must concur, but need not be contemporaneous.L. & N.R.R. Co. v. Philyaw,94 Ala. 463, 10 So. 83;Powell v. Higley,90 Ala. 103, 7 So. 440;2 Story's Eq.Jur.(14th Ed.) § 1049.The agreed consideration may be the construction of specified improvements, or performance of other work and labor for the vendor or lessor in lieu of the payment of money, if that execution or performance is after possession is taken, and is pursuant to the contract.E.T.V. & G.R.R. Co. v. Davis, supra.

(4)The acts of part performance must follow, not precede, the contract or completed agreement.Pfiffner v. Stillwater R.R.,23 Minn. 343, 344;Shakespeare v. Alba,supra, 76 Ala. 355;McLure v. Tennille, supra;Bain v. Wells, supra;Colgrove v. Solomon,34 Mich. 494, 499;Ludwig v. Leonard, 9 Watts & S. 44, 49;Lumpkin v. Johnson,27 Ga. 485, 490;Williams v. Morris,95 U.S. 457, 24 L.Ed. 360.

(5) And not be done "prematurely or too late."Pike v. Pettus, supra;Thynne v. Lord & Countess of Glengall, 2 House of Lords Repts.131, 157, 158;2 Reed on Statute of Frauds, § 573.

(6) As a corollary to the foregoing requirements to authorize specific performance, the acts of part performance should be such as to give a mutual right to perform, and its specific execution must effectuate the real intention of the parties and be free from any hardship or...