Linn v. McLean

• Decision Date: 17 July 1888
• Citation: 85 Ala. 250,4 So. 777
• Parties: LINN v. MCLEAN.
• Court: Alabama Supreme Court

4 So. 777

85 Ala. 250

LINN v. MCLEAN.

Supreme Court of Alabama

July 17, 1888

Appeal from chancery court, Elmore county; S. K. MCSPADDEN Chancellor.

The bill in this case is filed by the appellee, W. S. McLean against the appellant, J. J. Linn, and seeks to enforce a vendor's lien upon certain lands described in the bill for the payment of the purchase money alleged to be due thereon, and seeks to show a sale of the land by the complainant to the defendant. This case was, on a former term, before the supreme court on appeal, (80 Ala. 360). On reversal and remandment, the answer of the defendant was amended by leave of court, for the purpose of interposing the defense of the statute of frauds. The appellant went into possession of the land in controversy as the tenant of the complainant, under a written agreement or contract of rent and a deed from McLean and wife for all the ochre "in, on, or under the said tract of land," which the said Linn could mine during the term of the lease. The instrument contained a further stipulation in these words: "In consideration of the premises, we and each of us agree and bargain with said J. J. Linn that he may, at any time within twelve months from the date hereof, purchase said sixty acres of land, ochre, and other minerals, for the sum of $7,000, in addition to the said sum of $1,000 paid by said Linn on the delivery of these presents; and, on such payment being made, we bind ourselves, our heirs, executors, and administrators, to make and deliver to the said J. J. Linn a warranty deed in fee-simple to the said lands." Before the time limited by the contract had expired, Charles P. Jones, "as attorney for J. J. Linn," addressed to the complainant a letter in these words. "I desire to inform you that, under the contract between yourself and Dr. J. J. Linn, on the 13th day of February, 1884, he takes the option of purchase, and is ready to comply whenever you give him a good title to the land, as your contract binds you to do. Your contract binds you to deliver to Dr. Linn a warranty deed in fee-simple, and he looks to you for performance of your contract, and expects compliance on your part." The chancellor held that this election to buy did not come under the influence of the statute of frauds, and that the complainant was entitled to the relief prayed.

Jones & Falkner, for appellant.

Brickell, Semple & Gunter, for appellee.

STONE C.J.

When this case returned to the chancery court, the answer was amended by leave of the court, for the purpose of interposing the defense of the statute of frauds against the relief prayed by the bill. Our statute is different from its English prototype, (29 Car. II.) It is also different from many if not most of the statutes of other states on the same subject. Its language is: "In the following cases every agreement is void, unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, subscribed by the party to be charged therewith, or by some other person by him thereunto lawfully authorized in writing: *** Every contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller." Code 1886, § 1732, (2121.)

It is contended for appellee that appellant's plea or defense of the statute of frauds is insufficient in its averments. The contention is that it fails to deny that Jones, who is alleged to have made the election to purchase as the agent of Linn, was "thereunto lawfully authorized in writing." Such authority is expressly denied. The plea goes further, and denies that Jones had any authority from Linn, either written or verbal. Another objection is that the plea does not deny the payment of the purchase money, or a portion of it, and does not deny that McLean put Linn in possession. Possibly it would be a sufficient answer to this objection that the bill itself avers that no part of the purchase money had been paid, and that Linn took possession under the lease, and still retained possession when the bill was filed. We need not, however, place the decision on this question. The amended answer avers in terms, as part of the defense of the statute of frauds, that Linn has made no payment on the land as purchase money, and that he has had no possession, save that he acquired and continued to hold as lessee.

It is further contended for appellee that this case is brought within the exception to the operation of our statute of frauds; that Linn took possession of the land under his purchase; and that the thousand dollars he paid on first entering into the contract became part payment of the purchase money when he elected to make the contract a purchase. There can be no question that Linn, through Nash was in possession, as lessee, on February 13, 1885. It is not pretended he went out of possession, and was again put in. His possession, until he was superseded by the receiver, was continuous. Taking possession as a lessee, that status is presumed to continue until a change of title or changed relations are affirmatively shown. We do not say that, if there be proof that the lease was converted into a purchase, that would not change the character of Linn's holding. The possession is referred to the title under which it is held. McCarthy v. Nicrosi, 72 Ala. 332. What we do affirm is that a possession taken as lessee, and continued without visible change,...