Obermark v. Clark

• Decision Date: 13 October 1927
• Docket Number: 6 Div. 769
• Citation: 216 Ala. 564,114 So. 135
• Parties: OBERMARK v. CLARK.
• Court: Alabama Supreme Court

114 So. 135

216 Ala. 564

OBERMARK v. CLARK.

6 Div. 769

Supreme Court of Alabama

October 13, 1927

Appeal from Circuit Court, Jefferson County; Roger Snyder, Judge.

Action by F.L. Clark against A.F. Obermark for breach of contract. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Theodore J. Lamar, of Birmingham, for appellant.

Harrison & Judge, of Birmingham, for appellee.

BROWN J.

This is an action by the appellee for breach of contract, and was originally brought against the appellant and his sister, Mrs Sarah J. Gates. At the conclusion of the evidence the plaintiff amended his complaint by striking out the name of Mrs. Gates as a party defendant.

By the contract pleaded the plaintiff engaged to purchase, and the defendants engaged to sell and convey, a "good and merchantable title" to lot 4 in block 46, Corey, for a consideration of $5,250 to be paid by the plaintiff; $100 of which was paid upon the execution of the contract, $1,150 to be paid on delivery of the deed, $4,000 to be paid in one two, and three years, with interest at 6 per cent., secured by first mortgage on the property, the seller to pay the taxes for the current year, and to furnish abstract of title "brought down to date, said title to be good and merchantable, otherwise the earnest money to be refunded. The trade to be closed within 10 days, or as soon as merchantable title can be effected." (Italics supplied.)

The breach alleged is that defendants "failed or refused to furnish abstract of title brought down to date, and failed or refused to close the trade within 10 days after the execution of the contract."

In Alexander v. Abernathy, 215 Ala. 41, 108 So. 849 where a contract of like import was considered, except there the contract provided that "sale to be complete within 30 days from date, or as soon as merchantable title could be effected." It was held that the contract "was not a 30-day contract, unless a merchantable title could be shown within that period, and, if not, a reasonable time was given for the effectuation of same."

The complaint here does not aver that the defendants had, or were able to effectuate, a merchantable title within 10 days, and it was subject to the objection pointed out by the thirteenth and twentieth grounds of demurrer. The court, therefore, erred in overruling the demurrer to the complaint. Although it appears that the defendants had title to the property at the time the alleged contract was entered into with plaintiff, there is evidence tending to show that this title was incumbered by a previous contract on defendants' part to sell the property to one Chalmers, of which plaintiff had notice at the time the alleged contract was made, and without collusion on the part of the defendants a bill had been filed and was pending at the time this suit was instituted to enforce specific performance of the first contract. Under these circumstances it cannot be said that the error of the court in overruling the demurrer to the complaint was without injury, and this error must work a reversal of the judgment.

Some of the special pleas to which demurrers were sustained aver that Sarah J. Gates, one of the alleged contracting parties, was at the time a married woman living with her husband in this state, and that he did not join in or assent to the execution of the contract by her. Under the statute a married woman, living with her husband, the husband being of sound mind and a resident of this state, is without power to alienate her lands, or any interest therein, without the assent and concurrence of the husband expressed in writing, and contracts for the sale of her lands made by her without the assent and concurrence of the husband, expressed in the manner required by the statute, are void. Code of 1923, § 8269; Morris v. Marshall, 185 Ala. 179, 64 So. 312; Rooney et al. v. Michael & Lyons et al., 84 Ala. 585, 4 So. 421; McAnally v. Alabama Insane Hospital, 109 Ala. 109, 19 So. 492, 34 L.R.A. 223, 55 Am.St.Rep. 923; Wood et al. v. Lett et al., 195 Ala. 601, 71 So. 177.

Plea 9 filed by the appellant and to which the court sustained a demurrer avers, in substance, that Obermark and Gates were joint owners or tenants in common of the property, the...