Moses v. McClain

• Decision Date: 21 July 1887
• Citation: 2 So. 741,82 Ala. 370
• Parties: MOSES v. MCCLAIN.
• Court: Alabama Supreme Court

2 So. 741

82 Ala. 370

MOSES v. MCCLAIN.

Supreme Court of Alabama

July 21, 1887

Appeal from chancery court, Colbert county.

Bill in equity for specific performance.

The bill in this case was filed by Abram J. Moses against John W McClain, for the specific performance of the following contract:

"TUSCUMBIA ALA., October 21, 1886.

"For and in consideration of the sum of one dollar in hand paid, I hereby give A. J. Moses an option on my lands and improvements situated near Sheffield, and known as my home place, containing 120 acres, more or less, for the sum of eight thousand dollars, to be paid, say $3,000 cash, and balance in 1 and 2 years, with interest from date of possession. Money to be paid when titles are approved. This option good for 2 days.

[Signed]

"J. W. MCCLAIN."

The averments of the bill are substantially set forth in the opinion of the court, the option being accepted within the time limited. The bill was demurred to on the following among other grounds: (1) The contract is an attempt by a married man to alien his homestead without the voluntary signature and assent of his wife. (2) The contract is unattested and unacknowledged, signed by McClain alone, upon a mere nominal consideration, and without mutuality, and is therefore void. (3) The acceptance of McClain's offer to sell, by Moses, was not in writing, signed by Moses or his representative, and that, therefore, no contract was completed. (4) There is nothing in writing, signed by Moses, to bind him to buy the lands and pay the purchase money, and therefore the contract is void under the statute of frauds.

Upon the hearing of the cause, the chancellor rendered a decree sustaining the demurrers, and the complainant appeals to this court.

Thos. R. Roulhac, for appellant.

Wm. Cooper and J. B. Moore, contra.

STONE C.J.

The present suit is a bill for specific performance of a contract of sale of 120 acres of land, alleged to have been entered into in October, 1886. The undisputed facts are that McClain was, at the time, a married man, residing on the lands as his homestead; that he alone entered into the agreement of sale to Moses, without the concurrence of his wife, and that when called on to consummate the sale, a day or two after the agreement, he declined to do so, giving as a reason that his wife would not consent to join in the execution of said conveyance, or sign the deed for said lands. The contract price for the purchase of said lands was $8,000,-$3,000 in cash, and the residue in one and two years, with interest from the date of possession. After averring more than one demand made on McClain, once in writing, to execute said contract of sale, and his continued refusal, the bill contains the following offer and averments: "Orator avers that he is willing to relinquish so much of his rights, under said contract, as would entitle him to a conveyance of a complete estate in fee-simple in and to said lands, so far only as refers to any right or estate in dower or otherwise, which the said McClain's wife might now or hereafter have in and to said lands, and to dispense with the joining of said wife of said McClain in the execution of said deed; and he hereby offers, if the said McClain will execute to him a proper deed of conveyance to and for said lands, conveying only his own estate therein and title thereto, to accept the same as a compliance by the said McClain with his said contract, and at the same time to comply in all things with the stipulations and terms mentioned in said contract on his part to be performed." The written offer referred to contains the following clause: "I stand ready to pay you the first installment in cash, say three thousand (3,000) dollars, on approval of deeds to the one hundred and twenty acres of land, more or less, named in said contract, and to make the two notes for $2,500 each, with interest to [from?] date, from the day you give legal possession, not to be later than the first day of March, 1887." This letter is made part of the bill as an exhibit. It must, then, be treated as the offer which Moses made to accept a modified performance of McClain's contract of sale. The bill avers that the price, eight thousand dollars, was the fair and reasonable value of the lands.

Interpreting the averments of the bill and the written offer, made an exhibit, in the light they shed on each other, the offer made by Moses contained three conditions: First. An offer to pay $3,000 cash "on approval of deed." Second. The deed to convey "one hundred and twenty acres of land, more or less, named in the contract." The description in the contract is as follows: "My lands and improvements near Sheffield, and known as my 'Home Place,' containing 120 acres, more or less." Third. Possession to be surrendered not "later than the first day of March, 1887." These are the terms on which Moses, by his bill, offers to accept a modified measure of performance of the contract he made.

Conceding that McClain's contract is binding on him, and taking all the averments of the bill to be true, to what extent can the contract he made be specifically enforced? To what extent can he comply with the terms of his contract, without the concurrence and voluntary signature and assent of his wife, given as the statute requires?

Under the constitution of 1868, and the act "to regulate property exempted from sale for the payment of debts," approved April 23, 1873, (Sess. Acts 1872-73, p. 64,) the question came before this court whether the exemption extended to and embraced a homestead which, after reducing it to the lowest practicable quantity, still exceeded $2,000 in value. We held that it did not, and that the law had provided no method for carving a homestead, or its equivalent, out of property thus circumstanced. Still our ruling under that statute was that if by division, a homestead, either in city town, or country, could be so separated from the residue of the land as to reduce its value to a sum not exceeding $2,000, then such separated portion would be exempt. Miller v. Marx, 55 Ala. 323; McGuire v. Van Pelt, Id. 344; Watts v. Burnett, 56 Ala. 340; Farley v. ...