Holloway v. Smith

• Decision Date: 06 July 1916
• Docket Number: 3 Div. 222
• Citation: 198 Ala. 118,73 So. 417
• Parties: HOLLOWAY v. SMITH.
• Court: Alabama Supreme Court

73 So. 417

198 Ala. 118

HOLLOWAY v. SMITH.

3 Div. 222

Supreme Court of Alabama

July 6, 1916

Rehearing Denied Dec. 30, 1916

Appeal from City Court of Montgomery; Gaston Gunter, Judge.

Bill by Mary J. Smith against J. Lee Holloway, to charge a certain lot of land with a lien for an amount necessary for the erection of a suitable residence for a family such as Holloway has, or to vacate and set aside a conveyance of the lot to Holloway. From a decree overruling demurrers to the bill, respondent appeals. Reversed and remanded.

Armstead Brown, of Jacksonville, Fla., and Stuart Mackenzie, of Montgomery, for appellant.

W.A. Gunter, of Montgomery, for appellee.

McCLELLAN, J.

If we accept this bill's averments as justifying the theory upon which complainant (appellee) would rest her claim for favorable consideration in a court of equity--an acceptance that is not justified by the allegations of fact made--this is the substance of the cause of complaint and the basis for the rescission sought: The grantor conveyed a lot to the grantee upon consideration of a parol promise by the grantee that he would construct upon the land a dwelling for himself, the grantee failed or refused to make the improvement, and the grantor would have the contract (including, of course, the conveyance) rescinded. Among other objections not now necessary to be noted, the demurrer pointed this one: "That the bill seeks to enforce an illegal parol agreement which is void under the statute of frauds." This ground of demurrer was well taken, according to the apt authority of Patton v. Beecher, 62 Ala. 579, Brock v. Brock, 90 Ala. 86, 8 So. 11, 9 L.R.A. 287, and Tillman v. Kifer, 166 Ala. 403, 405, 52 So. 309, among others. The failure or refusal to perform a parol promise is not a fraud efficient to relieve the transaction of the effect of the statute of frauds. Authorities supra. There is no averment of fraud in the bill.

The demurrer was erroneously overruled. The decree is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C.J., and GARDNER and THOMAS, JJ., concur.