Gachet v. Morton

• Decision Date: 17 April 1913
• Citation: Gachet v. Morton, 181 Ala. 179, 61 So. 817 (Ala. 1913)
• Parties: GACHET v. MORTON.
• Court: Alabama Supreme Court

61 So. 817

181 Ala. 179

GACHET v. MORTON.

Supreme Court of Alabama

April 17, 1913

Appeal from Chancery Court, Bullock County; L.D. Gardner Chancellor.

Bill by B.M. Gachet against A.M. Morton. From a decree for respondent, complainant appeals. Affirmed.

Norman & Son, of Union Springs, for appellant.

Tom S Frazer, of Union Springs, for appellee.

MAYFIELD J.

This is a bill for specific performance of a contract for the sale of land. The contract sought to be enforced rests in parol; and is therefore in violation of the statute of frauds. Appellant, by his averments and proofs, seeks to take the case without the statute of frauds by bringing his case within the exception, in that a part of the purchase money was paid and the vendee placed in possession by the vendor. The case was submitted for a final decree on the pleadings and proof. All relief was denied the complainant by the chancellor; and from that decree this appeal is prosecuted.

After a careful review of the pleadings and proof, we are of the opinion that the chancellor reached a correct conclusion, and that his decree must be affirmed. Leaving out of consideration the question as to the statute of frauds, it is made to conclusively appear by the proof that the real failure to perform the contract alleged was due to the fact that the wife of the vendor would not join him in the conveyance to the vendee, so as to cut off her dower right in the lands. This insuperable obstacle, so far as the parties to this contract are concerned, was attempted to be avoided by having the court to ascertain the value of such dower right and abate the purchase price of the land to that extent, and as abated enforced, in accordance with the rules announced by this court in Minge v. Green, 58 So 381. While there was a difference of opinion among the members of the court as to the equity of a bill seeking such abatement, and enforcement of the contract as abated, and as to the certainty and correctness of the rule announced by the court for that purpose, it is in this case unnecessary to again go into that question, for the reason that this case must be decided on principles which preclude the reopening of that question.

It is true, as stated by appellant in his brief, that there was a failure on the part of respondent to plead the statute of frauds in this case. This, however, is not necessary when the bill on its face proclaims its own invalidity by expressly showing that it violates the statute. A respondent is never required to reiterate in his plea or answer that which is already affirmatively shown on the face of the bill. In such case he may test the sufficiency of the bill by a demurrer. Merritt v. Coffin, 152 Ala. 474, 44 So. 622.

The right to specifically enforce the performance of a contract is not absolute. Its enforcement in a measure, at least rests in the sound discretion of ...