Jackson v. Knox

• Decision Date: 05 November 1898
• Citation: 24 So. 724,119 Ala. 320
• Parties: JACKSON v. KNOX.
• Court: Alabama Supreme Court

24 So. 724

119 Ala. 320

JACKSON v. KNOX.

Supreme Court of Alabama

November 5, 1898

Appeal from city court of Talladega; John W. Bishop, Judge.

Bill by Richard Knox against Sarah Jackson. There was a decree for complainant, and defendant appeals. Reversed.

M. D Ivey, for appellant.

Knox Bowie & Dixon, for appellee.

COLEMAN J.

The appellee filed the present bill to enforce specific performance of a verbal contract for the sale of land. The bill shows that Sarah Jackson and her husband, Jerry Jackson jointly owned the land in controversy; that in the year 1892 they sold the same to the appellee, Richard Knox, for an agreed consideration, and put the purchaser in possession and that he subsequently paid the entire purchase money, according to the contract of purchase. Before the filing of this bill, the husband died; and the wife, appellant, instituted a suit in ejectment, which is now pending, to recover possession of the land from their vendee. Whereupon the purchaser filed his bill, in which the heirs of the deceased vendor and his widow, who was a joint owner, are made parties defendant. The bills prays for a specific performance of the contract; that the legal title be devested out of the respondents, and invested in complainant; and that appellant, plaintiff in ejectment, be perpetually enjoined. The heirs of the husband, Jerry Jackson, made no defense, and decrees pro confesso were taken against them. The appellant answered the bill, denied its averments as to the sale of the land, and asserted that she was the sole owner. After evidence, the cause was submitted for final decree, and the chancery court granted full relief against all the parties as prayed for in the bill. The appeal is from this decree.

There is no question in our minds that complainant established by the evidence the case made by the bill. The rule does not apply in a court of equity, that if issue is joined upon an immaterial plea without objection, and the plea is sustained by proof, the party pleading it is entitled to the benefit of the plea. If there is no equity in a bill, it will be dismissed at the final hearing by the court ex mero motu.

If complainant's bill had been filed against the heirs of Jerry Jackson alone, upon the proof, relief could not have been justly refused. As to Sarah Jackson, the question presented is whether a parol sale of land by a married woman, owning and holding the legal title, is capable of enforcement, even in cases where she puts the purchaser in possession, and receives from him a part of the purchase money, and subsequently the remainder of it. The facts predicated relieve the case from the statute of frauds, and, if there was no other inhibition on the power of the wife to contract, she would be bound by such an agreement. Section 2346 of the Code of 1886 (the law in force at the time the agreement to sell the land was entered into) reads as follows: "The wife has full legal capacity to contract in writing as if she were sole, with the assent or concurrence of the husband expressed in writing." This section has been construed to limit the contractual power of the wife in all cases to contracts made in writing, with the assent or concurrence of the husband expressed in writing. Strauss v. Glass, 108 Ala. 546, 18 So. 526. If the contract of the wife be in writing, with the assent of the husband expressed in writing, she has full capacity to make any contract or agreement that could be made by a man or feme sole. There is no other limitation on her power to bind herself by contract. She could make a valid bond to make title upon the payment of the purchase money, reserving in herself the legal title as security, by executing the bond in writing, with the assent of the husband expressed in writing; and, upon the payment of the purchase money, a court of equity would enforce its specific performance, and devest the legal title, and invest it in the purchaser, and that, too, without the concurrence of the husband, manifested by his joinder in the alienation as required by section 2348 of the Code of 1886, upon a bill filed by the purchaser for such relief. To hold otherwise would deny her that power to contract as a feme sole which is conferred by the statute supra. This was our conclusion in the case of Knox v. Land Co., 86 Ala. 180, 5 So. 578.

It being admitted that the agreement for the sale of the land was not in writing, and that the husband did not express his assent or concurrence in writing, the only remaining question is whether the doctrine of estoppel arises against the wife. An act in pais could not operate a change in the terms of the contract for the sale of the land; otherwise, an act in pais would remove the limitation placed upon her authority to make valid contracts. There is no pretense that the wife was guilty of fraudulent representation or deceit in effecting the sale of the land; nor does it appear that any act or statement of hers, since the death of the husband, has induced payment or disadvantageous action on the part of complainant....