Jones v. Jones

• Citation: 121 So. 78,219 Ala. 62
• Decision Date: 21 March 1929
• Docket Number: 7 Div. 836.
• Parties: JONES ET AL. v. JONES ET AL.
• Court: Supreme Court of Alabama

121 So. 78

219 Ala. 62

JONES ET AL. v. JONES ET AL.

7 Div. 836.

Supreme Court of Alabama

March 21, 1929

Appeal from Circuit Court, Talladega County; R. B. Carr, Judge.

Bill in equity for sale of lands for division by Irene Jones and others against John D. Jones and others, and cross-bill by respondent John D. Jones. From the decree, complainants appeal. Affirmed in part, and in part reversed and remanded.

Harrison & Stringer, of Talladega, for appellants.

Charles F. Douglas, of Anniston, and Knox, Dixon, Sims & Bingham, of Talladega, for appellees.

GARDNER J.

D. B Jones died intestate in April, 1926, a resident of the town of Munford, Talladega County, owning the house and lot on which he resided at the time of his death, together with other real estate not here necessary to note. He left no widow, but several heirs, and this litigation arose over a petition on the part of some of the heirs to have all the realty sold for division. One son, John D. Jones, insists that his father, during his life, gave him the house and lot in Munford by way of compensation for services rendered the latter days of his life. By cross-bill he sought specific performance of this contract. The agreement was oral, and the effort on the part of cross-complainant is to take the same from without the statute of frauds by proof of performance of services as in payment of the consideration, and being placed in possession of the property by the father. Section 8034 subd. 5, Code of 1923.

The chancellor, upon consideration of the cause for final decree on pleadings and proof, granted cross-complainant relief as to the house and lot at Munford, and ordered the other property sold for division. From this decree granting cross-complainant relief, complainants to the original bill prosecute the appeal here.

We think it sufficiently is made to appear cross-complainant and his wife sold their home in Ohio and returned to Munford at the solicitation of the father. They lived near him for some time, and visited him often. Three weeks before his death the father requested this son and his wife to move into his home. This was done, and the evidence tends to show they kept the house and cared for the father, who remained in the house as before. The possession referred to in our statute must be notorious and exclusive. Formby v. Williams, 203 Ala. 14, 81 So. 682. "The great controlling purpose of the statute is the requisition of written evidence of all contracts for the sale of lands *** to reduce contracts to a certainty, in order to avoid perjury on the one hand and fraud on the other." Kyle v. Jordan, 196 Ala 509, 71 So. 417. It "lays down a rule of evidence by which contracts within its influence are to be established." Wood v. Lett, 195 Ala. 601, 71 So. 177.

The cases also hold that the possession of the purchaser must be exclusively referable to the contract (Formby v. Williams, supra), "that is to say, it must be such possession that an outsider, knowing all the circumstances attending it save only the one fact, the alleged oral contract, would naturally and reasonably infer that some contract existed relating to the land, of the same general nature as the contract alleged" (36 Cyc. 660), and in Lay v. Lay, 75 Ark. 526, 87 S.W. 1026, it was held the possession must be referable to the promise and not to some domestic relationship of the vendor and vendee. 36 Cyc. 660, note 77. Where the person having the legal title to land is in possession, it is well established that such possession will be referred to the legal title. Here, the title being in the father, and both father and son being in possession, the law refers the possession to the father. Scruggs v. Decatur Mineral Co., 86 Ala. 173, 5 So. 440; Gafford v. Strauss, 89 Ala. 283, 7 So. 248, 7 L. R. A. 568, 18 Am. St. Rep. 111.

In Linn v. McLean, 85 Ala. 253, 4 So. 778, it was said: "Possession taken as lessee, and continued without visible change, does not tend to prove that such occupant was put in possession of the land as purchaser by the seller, so as to meet that provision of the statute of frauds. No act was done calculated or tending to give notice of a change of holding."

The case of Trammell v. Craddock, 93 Ala. 451, 9 So. 588, is here very much in point, and we take therefrom the following excerpt:

"While a husband might put his wife in possession, and while she might hold possession notoriously and exclusively-as, for instance, of lands upon which they did not reside, and of which she might have the requisite possession by a tenant or agent-the averments of this bill fall far short of showing the notoriety and exclusiveness in the taking and retention of possession which the law requires to afford evidence, along with proof of payment of the purchase money, taking the place of, and performing, in the prevention of frauds and perjuries, the office of a written memorial of

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