Pearce v. Third Ave. Improvement Co.

• Decision Date: 27 March 1930
• Docket Number: 6 Div. 514.
• Citation: 128 So. 396,221 Ala. 209
• Parties: PEARCE ET AL. v. THIRD AVE. IMPROVEMENT CO.
• Court: Alabama Supreme Court

128 So. 396

221 Ala. 209

PEARCE ET AL. v. THIRD AVE. IMPROVEMENT CO.

6 Div. 514.

Supreme Court of Alabama

March 27, 1930

Rehearing Denied May 15, 1930.

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

Bill for specific performance of a contract, for sale of real estate by the Third Avenue Improvement Company, against Marie Pearce, Willie L. Byrd, and Lula Tyus. From a decree for complainant, respondents appeal.

Corrected and affirmed.

Lange Simpson & Brantley, of Birmingham, for appellant.

Coleman Coleman, Spain & Stewart, of Birmingham, for appellees.

BOULDIN J.

The bill was filed by Third Avenue Improvement Company, a corporation, against Marie Pearce, Willie L. Byrd, and Lula Tyus for the specific performance of an alleged contract for the sale of real estate.

Complainant is the purchaser, and respondents the vendors.

The property was owned by respondents, tenants in common, each owning an individual one-third interest.

Respondents, among other things, set up the coverture of Marie Pearce; that, as to her, the contract was void for want of the joinder of her husband in the contract to convey.

The court decreed partial performance as to the interests of the other cotenants. Respondents appeal.

The bill does not disclose that Marie Pearce was a married woman, nor otherwise indicate the contract was ineffective as to any of the sellers. The body of the bill deals with the contract as binding on all. But relief is prayed by way of partial performance in case no relief can be granted as to all the parties or interests in the property.

We find in this no variance between pleadings and proof. The prayer gave notice of the demand for partial performance, and left it to respondents to set up coverture or other defense.

The chief issue of fact is whether any contract was ever consummated.

The draft of the contract was made by Lamar Smith, representing Messer-Johnson Realty Company, a real estate brokerage company, named in the contract as agent for the sellers.

It appears Smith first obtained the purchaser's signature to the document in triplicate. It was then taken by Smith to Mrs. Pearce, who appears to have been the dominant actor and adviser of her associates in the matter. She signed the three copies, and later Smith obtained the signatures of the other two and delivered one of the documents to the purchaser.

It is claimed by respondents that at the time Mrs. Pearce signed she notified Smith that the $100, named as earnest money, was not satisfactory, and demanded $500 as earnest money before the contract became effective. In this connection it is claimed Smith then and there changed one of the three papers by inserting $500, but failed to change the others. All this is denied by Smith. Evidence corroborative of both sides on this issue is vigorously argued. It will not be reviewed in detail.

We note, however, that Smith did, at the time, and at Mrs. Pearce's instance, change the draft of the contract by inserting the words: "Interest assumed from 2/13/24," (meaning the interest on the mortgage) and "This contract shall be closed within 15 days from date." Certain figures, "$100.00" and "$500.00," admittedly written by Smith, were also put in evidence.

The original instrument in which respondents claim Smith inserted "$500.00" in lieu of "$100.00" was put in evidence. This original is not before us for inspection and comparison.

The well-known rule is that, where evidence before the trial court is not available to us, the finding of the trial court will not be disturbed, unless the evidence before us shows his conclusion was wrong, notwithstanding what may have appeared from the omitted evidence.

Without putting any special stress upon our want of opportunity to inspect the original documents, upon a careful consideration of all the evidence in the light of the circumstances, we are not prepared to hold the trial court in error on this issue.

It follows that this contract, modified as Mrs. Pearce required, was signed by all parties named therein, and delivered to the purchaser, who acceded to the changes inserted therein and tendered full performance within the fifteen-day period.

When vendors execute a contract in their own way and deliver same to the vendee who accepts the contract as it is, the legal status of the transaction is fixed. Although, as thus concluded, it is not so executed by one of several tenants in common as to become binding on him or her, it becomes binding on those who have lawfully executed it as to their distinct and severable interests. This elementary rule applies with equal force where one of the parties is under disability, as in the case of a married woman without the joinder of her husband.

While the tenants in common start out to convey all their interests together, it does not follow that because the effect of their joint action is to leave one not bound, the transaction is still in fieri and not binding on either.

Have the vendors delivered to the vendee the finished document as they intend to make it? If so, they cannot vary and contradict its terms as a valid written instrument pro tanto.

The case of Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A. L. R. 1153, holds nothing at variance with this elemental law of contracts. The controlling fact in that case is that the purchaser obtained the signature of one tenant in common on condition that he would get the other tenant in common, a married woman, to join in the contract. He failed to procure her valid joinder in the contract for want of the joinder of her husband. Held, the contract was never completed, and therefore inoperative as to all. That case has an analogy in one phase of the present case. The deed drawn to be executed by all the vendors, and signed only by Miss Tyus to be delivered when duly executed by her associates who refused so to do, never became an effective deed.

The decree of the trial court correctly declared complainant's equities to rest upon the contract to convey, and accordingly divested the title of Miss Tyus by the decree.

The question of most difficulty is whether equity will decree specific performance as to the interests of Miss Tyus and Miss Byrd, thus constituting the purchaser a tenant in common with Mrs. Pearce, as to whom the contract was void.

Counsel on both sides, with commendable zeal, have presented numerous authorities having more or less bearing on this question. There is conflict of authority.

A number of cases have arisen wherein one tenant in common has executed the contract on his own behalf and as agent for the others without authority, and the others refuse to ratify his act. A kindred class is where one tenant in common makes the contract as if the sole owner, intending to have other tenants join with him in executing the conveyance, and they decline so to do.

Typical of the cases holding such contracts not enforceable pro tanto is Olson v. Lovell, 91 Cal. 508, 27 P. 765, followed in Wightman v. Hall, 62 Cal.App. 632, 217 P. 580.

These cases proceed on the broad ground that if a contract cannot be specifically enforced, according to the full intent of the parties, it cannot be enforced at all; that a court of equity will not make a new and different contract. This is the same ground upon which partial performance is challenged as an equitable principle.

In Brown v. Power, 263 Pa. 287, 106 A. 539, followed in Affrime v. Mandel, 267 Pa. 387, 111 A. 255, adult tenants in common entered into contracts to convey predicated upon or subject to the approval of the orphan's court so as to pass the title of minor tenants in common. Until so confirmed the transaction was regarded as in fieri.

In Hudson v. Cozart, 179 N.C. 247, 102 S.E. 278, the purchaser, as part consideration, agreed to erect upon the property a drying plant ready for the ensuing season. Held indivisible, and vendee not entitled to partial performance, no offer being made to erect the plant for a part title.

On the other hand, the case of Ward v. Walker (Tex. Civ. App.) 159 S.W. 320, is typical of cases holding contracts by tenants in common, not enforceable as to all interests, the proper subject of specific performance as to the interests of those who have properly executed the contract. In that case one of the vendors joining in the contract was a married man having a homestead right which he could not convey without the assent of his wife. In this regard it is quite analogous to the instant case.

Specific performance was granted as against other tenants in common joining in the contract. The court said (159 S.W. 324):

"We are unable to see anything unconscionable, inequitable, or unjust in requiring the appellees to perform, so far as they are able, the contract which they have deliberately made. The legal effect of the contract was that each of them for sufficient consideration bound himself to sell and convey the land, so far as he was able; that is, his undivided interest."

To like effect is Meek v. Walthall, 20 Ark. 648.

In our own case of Bartee v. Matthews, 212 Ala. 667, 103 So. 874, one tenant in common contracted to sell a complete title. Specific performance held proper against him and those in like position as to his moiety.

Specific performance pro tanto against a tenant in common who assumes to act for all, or who signs for others without authority, is recognized in other jurisdictions. Keator v. Brown, 57 N. J. Eq. 600, 42 A. 278; Melin v. Woolley, 103 Minn. 498, 115 N.W. 654, 946, 22 L. R. A. (N. S.) 595; Tobin v. Larkin, 183 Mass. 389, 67 N.E. 340.

Specific performance pro tanto at the election of the vendee where full performance cannot be had has been a recognized remedy in equity from our earliest judicial...