Head v. Sanders

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, J.
• Citation: Head v. Sanders, 189 Ala. 443, 66 So. 621 (Ala. 1914)
• Decision Date: 07 November 1914
• Docket Number: 806.
• Parties: HEAD v. SANDERS.

66 So. 621

189 Ala. 443

HEAD v. SANDERS.

No. 806.

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Jefferson County; E.C. Crowe, Judge.

Action by John Sanders against J.D. Head for money had and received. Judgment for plaintiff, and defendant appeals. Transferred from Court of Appeals. Reversed and remanded.

Harsh Beddow & Fitts, of Birmingham, for appellant.

W.M Woodall, of Birmingham, for appellee.

GARDNER J.

The principle of law is well recognized that where the purchaser pays to the seller a part of the purchase price of real estate, on a contract by which the seller is not bound to convey to the purchaser, such purchaser may recover the money so paid in an appropriate action. Nelson v. Shelby Manufacturing & Improvement Co., 96 Ala. 515, 11 So 695, 38 Am.St.Rep. 116.

In count C of the complaint it is alleged that the plaintiff and the defendant entered into a contract, which is in the following words:

"This certifies that John Sanders has this day leased from J.D. Head lot No. 15 and 16 in block No. 14 as surveyed by Kelley & Joy (civil engineers). The property is a portion of the Pleasant Valley survey of lots, and more particularly described as a lot embraced in the central tract of said survey. The said John Sanders agrees to pay on the 10th day of each month hereafter the sum of $10.00, and has this day executed notes for $_____ each, with interest, and when the said John Sanders shall have paid off promptly when due 35 of said notes, then he, the said John Sanders, shall be entitled and privileged to purchase the said lot by continuing the further payment of said notes, which by so doing, he shall have a good and sufficient deed to said lot; otherwise all payments previously made to pass as rent or lease money for said lot for the period of time the prompt payment of said notes were made by the said John Sanders."

Said count also alleges that the instrument is void as a contract for the sale of said land, in that it fails to state the location of said lots, as is required by the statute of frauds; that said instrument fails to state the state or county in which said lots are located; that plaintiff has never had control or possession of said lots.

The facts alleged in said count, together with the provisions of the contract, do not show a case wherein the plaintiff is entitled to recover on the principle above announced, and the demurrers to this count should have been sustained. In the case of Nelson v. Shelby, etc., Co., supra, relied upon by the plaintiff below, the contract was as follows:

"Received of Frank Nelson, Jr., $166.66, being one-third cash payment on lot No. 28, of block 94. Bond for title to said lot will be delivered on execution of notes for balance of purchase money and return of this receipt properly indorsed."

The court, in passing upon this instrument, says:

"We may concede the memorandum to be complete in all respects except as to the terms of the payment. It says one-third cash, and 'notes to be executed for the balance.' Whether these notes are to bear interest, and if so, the rate of interest, or to be payable in one, two, or ten

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