Patton v. Robison

• Decision Date: 02 February 1950
• Docket Number: 8 Div. 433
• Citation: 253 Ala. 248,44 So.2d 254
• Parties: PATTON et ux. v. ROBISON et ux.
• Court: Alabama Supreme Court

Page 254

44 So.2d 254

253 Ala. 248

PATTON et ux. v. ROBISON et ux.

8 Div. 433.

Supreme Court of Alabama.

Feb. 2, 1950.

Russell W. Lynne, of Decatur, for appellants.

Ben L. Britnell and Marvin M. Eubanks, of Decatur, for appellees. The bill alleges that in 1943 complainants (who are kinsmen of respondents, Minerva Patton being their daughter) at the invitation of defendants moved to the premises described and were told by respondents that if they would build a house on the premises respondents would deed the premises to complamants; that relying thereon complainants proceeded to construct a dwelling house on the premises, and when it was completed to such extent that complainants moved into it, respondents stated to complainants that they would sell the house and lot to complainants, the consideration to be $380.00, payable $5.00 a week; that complainants completed the dwelling, remained therein, commenced paying said installments in the spring of 1944, sometimes paying larger amounts than installments agreed upon; that the full purchase price agreed upon has been greatly overpaid and respondents have failed and refused to carry out their part of the contract, to convey said premises to complainants. It is alleged that at the time of entering into said contract complainants paid part of the purchase price to respondents and were put in possession of the premises and are still in possession of same, having executed their part of the contract of purchase.

LAWSON, Justice.

This bill was filed in the Morgan County Court, in equity, by Charlie Patton and wife, Minerva Patton, against Jessie Robison and wife, Ada Robison. The Complainant Minerva Patton is the daughter of the respondents.

The bill sought specific performance of a contract to convey a house and lot situate in the city of Decatur and an injunction to restrain the respondents from proceeding with an action to secure possession of the said house and lot.

A temporary injunction was granted, upon bond being made, respondents moved to discharge and to dissolve the injunction. They also filed their sworn answer and demurred to the bill.

The trial court sustained the demurrer to the bill and discharged the injunction. No action was taken on the motion to dissolve the injunction. From the decree sustaining demurrer to the bill and discharging the injunction, the complainants have appealed to this court.

We will consider first the assignments of error challenging the correctness of the decree in so far as the demurrer to the bill was sustained.

The decree sustaining the demurrer was general and therefore is to be referred to the grounds of the demurrer going to the bill as a whole. Florence Gin Co. v. City of Florence et al., 226 Ala. 478, 147 So. 417, and cases cited. A demurrer is a single entity, so if any ground of the demurrer going to the bill as a whole is well taken, the decree sustaining the demurrer must be affirmed. Cook v. Cook, 248 Ala. 206, 27 So.2d 255.

The ground of 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, § 3, Title 20, Code 1940, is averred to have been complied with by the payment of the purchase money and by putting the complainants (purchasers) into possession. Nelson et al. v. Hammonds, 173 Ala. 14, 55 So. 301; Adams v. Adams, 235 Ala. 27, 176 So. 825; Cox v. Lerman et al., 233 Ala. 58, 169 So. 724; Penney v. Norton, 202 Ala. 690, 81 So. 666; Miller v. Glenn, 208 Ala, 265, 93 So. 898. The general demurrer, 'There is no equity in the bill,' does not raise the objection that the bill fails to offer to do equity. Henderson Baker Lumber Co. v. Headley et al., 247 Ala. 681, 26 So.2d 81. In the case last cited it was said: 'Of course, Headley should allege in his cross-bill an offer to do equity by the payment of any sum found to be due, if in fact it be ascertained that the full purchase price had not been paid. We find, however, no ground of demurrer taking that point.' 247 Ala. 688, 26 So.2d 88. An examination of the original transcript in that case discloses that the first ground of the demurrer interposed to the cross-bill was 'that there is no equity in the cross-bill.' In the instant case there is no ground of demurrer specifically taking the point that the complainant failed to do equity.

In suits for the specific performance of a contract to convey land, there is a presumption that complainant has suffered injury for which there is no adequate remedy at law. Hence, it is not necessary for complainant to make any averment showing the inadequacy of his legal remedy, that being apparent from the nature of the subject matter. 58 C.J. § 497, pp. 1168-1169; 49 Am.Jur., pp. 107 and 186.

The bill sufficiently alleges the terms of the contract and avers that all payments due by the purchasers have been made. Penney v. Norton, supra.

We have considered above all of the grounds of demurrer going to the bill as a whole. None of them are well taken. We hold, therefore, that the trial court erred in sustaining demurrer to the bill of complaint.

We come now to consider the action of the trial court in discharging the temporary injunction. An appeal now lies to this court from an order discharging an injunction, as well as from one dissolving an injunction. § 757, Title 7, Code 1940.

The jurisdiction of the Morgan County Court to issue writs of injunction is not questioned. Act No. 66, approved July 7, 1947, Local Acts 1947, p. 46.

The distinction between the dissolution and the discharge of an injunction is well recognized by a long line of decisions of this court. Jones v. Ewing, 56 Ala. 360; East & West R. Co. of Alabama et al. v. East Tennessee, Va., & Ga. R. Co., 75 Ala. 275; Ex parte Sayre, 95 Ala. 288, 11 So. 378; Ex parte Fechheimer, 103 Ala. 154, 15 So. 647; Woodward v. State, 173 Ala. 7, 55 So. 506; Acker v. Green et al., 216 Ala. 445, 113 So. 411; Barnett v. State ex rel. Simpson, 235 Ala. 326, 179 So. 208; Rochell v. City of Florence, 236 Ala. 313, 182 So. 50; Grooms v. Brown-Marx Co., 236 Ala. 655, 184 So. 698; Sellers v. Valenzuela, 249 Ala. 620, 32 So.2d 520; Riley et al. v. Bradley, 252 Ala. 282, 41 So.2d 641. The rule laid down by the above-cited cases is to the effect that a motion to dissolve an injunction touches the equity of the bill, while a motion to discharge reaches irregularities in the mode of granting or issuing the writ, or as expressed in some of the cases, where the writ is 'improvidently' granted.

Appellees' main insistence in support of the trial court's action in discharging the injunction is that the writ was 'improvidently' issued in that it does not appear from the bill that any possessory action had been instituted by respondents against complainants at the time the writ of injunction was issued.

Such an objection goes to the equity of the bill and cannot be reached by motion to discharge.

But even if it be assumed that such an objection could be reached by a motion to discharge, we cannot agree that the writ should have been discharged on that ground.

The bill alleges that prior to the institution of this proceeding the respondents caused to be served upon the complainants by a deputy sheriff of Morgan County a notice, which is made an exhibit to the bill, and which reads as follows:

'Exhibit 1.

'January 7, 1948.

'To: Minerva Patton and Charlie Hays Patton

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