Nelson v. Hammonds

• Decision Date: 13 April 1911
• Citation: 55 So. 301,173 Ala. 14
• Parties: NELSON ET AL. v. HAMMONDS.
• Court: Alabama Supreme Court

55 So. 301

173 Ala. 14

NELSON ET AL. v. HAMMONDS.

Supreme Court of Alabama

April 13, 1911

Appeal from Chancery Court, Limestone County; W. H. Simpson Chancellor.

Suit by Daniel Hammonds against J. B. Nelson and others. From a decree overruling demurrers and refusing to dissolve a temporary injunction, defendants appeal. Affirmed.

The bill alleges an agreement to purchase and a contract to sell certain lands described in the bill, the payment of a part of the purchase money, and the going into possession of the land. The bill further alleges that Nelson is attempting to sell, or has contracted to sell, to Frank Turner and Will Staten, 80 acres of said land, which is also described. It is then alleged from information and belief that the purchasers of the 80 acres have entered thereon and cut timber therefrom to the damage of orator in a large sum. The bill then offers to do equity, and further alleges that complainant has requested and offered to pay Nelson the balance due on said land, but that he declined and refused to permit him to do so. It is further alleged on information and belief that the purchasers had notice of the equity of the complainant at the time of their purchase. Attached to the bill are interrogatories propounded to each defendant, seeking to elicit testimony relative to the facts set up in the bill and the prayer is for specific performance of the contract and an accounting for timber cut, and for such other further, and general relief as orator may be entitled to. Injunction is also sought against the respondents, restraining them from interfering with or disposing of the 80 acres pending the disposition of this cause. The other matters sufficiently appear from the opinion.

James E. Horton, Jr., for appellants.

W. R. Walker, for appellee.

McCLELLAN J.

The demurrer, taking the objection that the bill is without equity, was properly overruled. The broad equitable foundation of the bill is specific performance of a contract to convey land. If it be assumed that the agreement for the averred sale and purchase was not reduced to writing, since it is not expressly alleged that it was reduced to writing, the exception provided in the fifth subdivision of the statute of frauds (Code 1907, § 4289; Code 1896, § 2152) is averred to have been complied with by the payment of a part of the purchase money, and by putting the complainant (purchaser) into possession. If other subordinate phases of the relief sought by the bill are (we assume, without affirming) vain, that fact cannot neutralize the broader equity asserted in the bill.

The other question presented for review is that the chancellor erred in overruling the joint and several motion of respondents to dissolve the temporary injunction, issued in accordance with the prayer of the bill. Code, § 2839; sections 4226, 4535.

Code, § 4535, provides: "Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce." Previous to this statute on motion to dissolve injunction affidavits were receivable, in certain exceptional cases, in refutation of the denials of an unequivocal, full, specific sworn answer--Barnard v. Davis, 54 Ala. 565; Harrison v. Maury, 140 Ala. 523, 37 So. 361, among others. One of these exceptions was where waste was a probability if restraint of the adversary was not enforced. The cited statute entirely changes this rule by rendering serviceable upon the issue of dissolution vel non in all cases evidence consisting of the bill, the answer, whether it carries denials of the bill's averments of fact or not, and "affidavits" introduced by any party. The feature of the earlier rule in respect of the largely conclusive character of the sufficient denials of the sworn answer cannot consist with the practice established by the statute quoted. It is hence abrogated; and with the...