Martin v. Baines

• Decision Date: 29 March 1928
• Docket Number: 6 Div. 997
• Citation: 217 Ala. 326,116 So. 341
• Parties: MARTIN v. BAINES.
• Court: Alabama Supreme Court

116 So. 341

217 Ala. 326

MARTIN v. BAINES.

6 Div. 997

Supreme Court of Alabama

March 29, 1928

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by B.M. Baines, Jr., against P.D. Martin. From a decree overruling a demurrer to the bill, respondent appeals. Reversed and remanded.

Bill must contain a prayer for process (Code 1923, § 6525; Chancery Rules 7, 17).

This is a bill by the appellee against the appellant to enforce the specific performance of a contract to convey certain real estate situated in Birmingham, Jefferson county, Ala.

The bill avers:

"That on or about July 15, 1926, the respondent, P.D Martin, was seized in fee simple of certain real estate located in Jefferson county, Birmingham, Ala., and described in the agreement hereinafter set out; that on ______ complainant and respondent entered into an agreement, whereby the complainant agreed to buy and respondent agreed to sell said property described in said agreement, of which the following is a copy."

Following these averments the alleged copy of the agreement, dated July 15, 1926, signed by both parties, was set out in haec verba.

The copy of the agreement set out in the original bill described the property as "lots 1, 2, and 3 in block 17C, East Lake Birmingham, Ala., located at Eighty-Fifth street and Third Avenue North." In the bill as amended it is described as "part of lots 1, 2, and 3, block 17C, East Lake, Birmingham, Ala., being 150 feet on Eighty-Fifth Street North and running back in uniform width of 150 feet."

The contract fixed the purchase price at $2,200, $100 to be paid as "earnest money and part of the purchase price," receipt of which is recited in the agreement, the remainder payable $200 "at the close of said deal," the balance of $1,900 payable $50 per month, secured by first mortgage, each note payable on or before maturity with interest, and the contract provided that:

"The trade is to be closed within 15 days, or as soon as merchantable title can be effected, and conveyance is to be made by warranty deed."

The bill further avers that:

Complainant "placed the $100 earnest money in the hands of the respondent's agent; that he signed the contract as stated above, and complied with all the conditions of said agreement on his part to be performed, and demanded a conveyance of said property, *** but the respondent refused and continues to refuse to carry out his part of said agreement. Complainant avers that he is still ready and willing to comply with said contract or agreement of purchase and to pay the purchase money of said property to the respondent in accordance with the terms and conditions of said agreement."

The respondent is not named in the prayer of the bill nor made a defendant thereto, and there is no prayer for process.

Motion was made to strike the amendment because it substituted a new cause of action. The motion was overruled, and thereupon the respondent demurred to the bill assigning numerous and sundry grounds, among others, that the bill contained blanks; that the bill does not aver that the contract was in writing so as to take it out of the statute of frauds; that the bill as amended discloses that the contract is affected with a patent ambiguity in the description of the property and is void for uncertainty, and that some of the provisions of the contract are left open to future treaty; that the bill fails to aver that the complainant is ready, willing, and able to carry out his part of the contract; and that there is a nonjoinder of parties in that defendant's wife is not made a party.

Barber & Barber, of Birmingham, for appellant.

McCollough & McCollough, of Birmingham, for appellee.

BROWN J. (after stating the facts as above).

The amendment to the bill relates to the same transaction between the same parties, and the motion to strike was properly overruled. Code 1923, § 6558; Birmingham Ry., Light & Power Co. of Oden, 164 Ala. 1, 51 So. 240.

Rule 10 of Chancery Practice, cited by appellant, provides that:

"Bills which contain blanks are defective, and may be ordered to be taken off the file."

However the fact that a bill contains blanks does not render it demurrable, unless the omitted averment is essential to the equity of the bill. As the rule indicates, it may be enforced by motion to take the bill off of the file. United States Fidelity & Guaranty Co., et al. v. Pittman et al., 183 Ala. 602, 62 So. 784; Bell v. Burkhalter et al., 183 Ala. 527, 62 So. 786; McKenzie v. Baldridge, 49 Ala. 564.

While the statute (Code 1923, § 6525) prescribing the form of bills in equity does not require that the parties who are to be made defendants shall be named in the prayer as such, or that the bill shall contain a prayer for process, this is the requirement of the rules of chancery practice and the decisions of this court. Chancery Rules 7 and 17, Code 1923, vol. 4, pp. 910, 912; McDonald v. McMahon's Adm'r., 66 Ala. 115. In the case cited it was said:

"The names of parties must appear in the bill; and though named in the bill, none can be regarded as parties defendant against whom process is not prayed."

And in Jackson et al. v. Putman et al., 180 Ala. 39, 60 So. 61, the reason of the rule is stated.

To constitute a patent ambiguity in the description of real property in a contract which may not be explained by extrinsic evidence, the description on its face, or aided by judicial knowledge, must apply equally to two or more different tracts or parcels. Chambers v. Ringstaff, 69 Ala. 140; Brannan v. Henry, 142 Ala. 698, 39 So. 92, 110 Am.St.Rep. 55; Alvarez et al. v. Warner et al., 201 Ala. 50, 77 So. 344.

It is not enough to render the contract void that the description, without the aid of the attendant circumstances under which it was executed, is too indefinite to identify the property. If the description furnishes data which, when aided by extrinsic evidence as to the attendant circumstances, and the description in the contract, is made certain and can be applied to the property in controversy, it will be sustained. East et al. v. Karter, 215 Ala. 375, 110 So. 610; Minge v. Green, 176 Ala. 343, 58 So. 381; Lodge v. Wilkerson, 165 Ala. 302, 51 So. 609; Ellis v. Burden, 1 Ala. 458; Reynolds v. Shaw, 207 Ala. 274, 92 So. 444; O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Caston v. McCord, 130 Ala. 320, 30 So. 431; Homan v. Stewart, 103 Ala. 644, 16 So. 35; Mead v. Parker, 115 Mass. 413, 15 Am.Rep. 110; Allen v. Kitchen, 16 Idaho, 133, 100 P. 1052, L.R.A.1917A, 563, 18 Ann.Cas. 914.

The bill avers and the demurrer admits that:

"On or about July 15, 1926, the respondent, P.D. Martin, was seized in fee simple of certain real estate in Jefferson county, Birmingham, Ala., and described in the agreement hereinafter set out [to wit] part of lots 1, 2, and 3, block 17C, East Lake, Birmingham, Ala., being 150 feet on Eighty-Fifth Street North, and running back in uniform width of 150 feet."

To apply the reasoning of Chief Justice Stone in the leading case, Chambers v. Ringstaff, supra:

"It was admitted that the lands sued for had been the property of Mrs. Knight. Now, if it be conceded that the unaided description of the lands given in the mortgage is too uncertain, because it equally describes other lands in other government surveys outside of the state, how stands the question, when it is shown that Mrs. Knight owned and occupied the lands thus numbered, which are in Alabama, and there is an absence of proof that either she or her husband owned or claimed any other lands, either in this state or elsewhere? It would be very unreasonable to presume they intended to convey lands they had no claim to. We rather presume they intended to convey lands they owned. Doubtful terms of a contract are construed most strongly against the grantor or promisor, 'ut

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