Penney v. Norton

• Decision Date: 17 April 1919
• Docket Number: 8 Div. 161
• Parties: PENNEY v. NORTON.
• Court: Alabama Supreme Court

81 So. 666

202 Ala. 690

PENNEY v. NORTON.

8 Div. 161

Supreme Court of Alabama

April 17, 1919

Appeal from Circuit Court, Morgan County; O. Kyle, Judge.

Bill for specific performance of a contract to convey land by Lawrence W. Norton against James E. Penney and wife. From a decree for plaintiff, defendant named appeals. Affirmed.

Contract to purchase land is taken out of the statute when the purchaser has taken possession and paid a portion of the price.

The opinion of the trial court was as follows:

This is a bill to enforce the specific performance of an alleged contract for the sale of land. It is filed against Penney and wife. Both respondents separately demur, alleging the insufficiency of the bill, upon many grounds. In bills of this character great precision and nicety is required both in allegations and proof. 20 Ency.Plead. & Prac. 435; Jones v. Jones, 155 Ala. 644, 47 So. 80; Westbrook v Hayes, 137 Ala. 572, 34 So. 622; Brown v Weaver, 113 Ala. 231, 20 So. 964; Citronelle v Buhlig, 184 Ala. 406, 63 So. 951. The land alleged to have been contracted to be sold must be clearly identified. 36 Cyc. 691. It must be described with such certainty that it can be identified without resorting to oral evidence to supply a deficiency in the description. Shannon v Wisdom, 171 Ala. 413, 55 So. 102. It must be such a description that the court can ascertain the boundaries by a survey. 36 Cyc. 776. Under these principles of law it is insisted by the demurrer that the land alleged to have been contracted for in this case is not sufficiently described. The bill describes the land by its boundaries on all four sides. It is true that the bill says it may be "further identified" as embracing all lands owned by defendants "adjacent and adjoining to the several above boundaries," but I am of opinion that that language does not constitute a patent ambiguity in the description of the property. When the description is such that a patent ambiguity is disclosed, parol proof of what was intended to be conveyed by the parties will not be received but, when the ambiguity is latent, parol proof is admissible to make it clear and certain. Birmingham Securities Co. v. Southern University, 173 Ala. 122, 55 So. 240; 6 Pom.Eq. (3d Ed.) § 766. The description of the land in this case can be aided by parol, and, if in any respect it is deemed uncertain, parol evidence can make it certain. Homan v. Stewart, 103 Ala. 650, 16 So. 35. It is next objected by brief that the bill is insufficient in that it avers that the respondents were seized and possessed of the lands "on or prior to the 3d day of October, 1917," and that this averment does not show that respondents could convey said land on that date. Construing the bill against the pleader, I am of the opinion that, if the bill had been demurred to on this ground, this averment is insufficient in a bill of this character. 20 Ency.Plead. & Prac. 451; Ide v. Leiser, 10 Mont. 5, 24 P. 695, 24 Am.St.Rep. 17. It is next objected that the contract as set out is void by the statute of frauds, in that it was not in writing and signed by the alleged vendors. The check set out in the bill given by complainant to respondent, J.E. Penney and upon which complainant seems to rely as being a sufficient written memorandum of the contract to comply with the statute, is not signed by either of the alleged vendors. The statute (Code 1907, § 4289) in express language requires such a writing to be "subscribed by the party to be charged therewith." Several respectable courts seem to hold that this is necessary (Worrall v. Munn, 5 N.Y. 229, 55 Am.Dec. 330-344; Mentz v. Newwitter, 122 N.Y. 491, 25 N.E. 1044, 11 L.R.A. 97, 19 Am.St.Rep. 514; Peevey v. Haughton, 72 Miss. 918, 17 So. 378, 18 So. 357, 48 Am.St.Rep. 592; McPherson v. Fargo, 10 S.D. 611, 74 N.W. 1057, 66 Am.St.Rep. 723; Brodhead v. Reinbold, 200 Pa. 618, 50 A. 229, 86 Am.St.Rep. 735); but the Supreme Court of Alabama held that a note describing the contract signed by the vendee alone when he went into immediate possession of the land was sufficient compliance with the statute (Reynolds v. Kirk, 105 Ala. 446-448, 17 So. 95); and in a later case it seems to have been conceded that, if the check there mentioned had sufficiently described the contract, it would have been a sufficient compliance with the statute, as the bill averred that complainant went immediately in possession of the land under said contract. But it is objected that said check does not show when the balance of the purchase money was to be paid, and that therefore the terms of the contract are not sufficiently set forth. In a court of equity, unless so stated in the contract, time is not of the essence of the contract. Vance v. Newman, 72 Ark. 359, 80 S.W. 574, 105 Am.St.Rep. 42; King v. Ruckman, 21 N.J.Eq. 599; Converse v. Blumrich, 14 Mich. 109, 90 Am.Dec. 230; Young v. Daniels, 2 Iowa, 126, 63 Am.Dec. 477; 36 Cyc. 797. The contract must be complete and definite as to the terms of the sale and date of payment, "unless a reasonable time is inferred." 6 Pom.Eq. (3d Ed.) § 767; Welsh v. Williams, 85 Miss. 301, 37 So. 561. And where no time is fixed by the parties for the carrying out of a contract, the law implies that a reasonable time was agreed upon. Messer v. Ruff, 185 Ala. 236, 64 So. 51; Cotton v. Cotton, 75 Ala. 346-347. So the contract is not invalid because it fails to state when the balance of the purchase money is to be paid. It is urged, however, that the bill fails to set forth what kind of a deed complainant was to receive under the contract, and that therefore it is insufficient. It seems to me that in a court of equity respondent is estopped from making this objection. It ought not to lie in his mouth to say to complainant: "I made the contract with you to make a deed and took your money thereunder, but, as I did not specify what kind of a deed that I would make you, I will keep your money and not make you a deed of any kind"; but, if respondent would be permitted to make this objection, it will be of no avail, for the law is that the legal effect of a contract to make title or to deliver a deed to land under a contract of purchase is that the vendor shall make a good title. 39 Cyc. 1446, note 7, 1447, 1537, note 71; 29 Am.Ency. of Law (2d Ed.) 616. This right to a good title "is a right not growing out of the agreement of the parties, but which is given by law." Chapman v. Lee, 55 Ala. 620.

It has been held that the failure of a bill of this kind to allege when the money under a contract was payable does not make it demurrable. Ashurst v. Peck, 101 Ala. 500, 14 So. 541. Under the authorities cited, together with the averment that complainant went immediately into possession of the land, I am of the opinion that the check set forth in the bill was a sufficient written memorandum of the contract to take it out of the influence of the statute of frauds. But,

even if this were not so, under the averments of the bill, complainant paid respondents part of the purchase price of the land, and was put in possession thereof, and is in possession now. By the express language of the fifth subdivision of the statute this was sufficient to prevent the application of the statute. L. & N.R.R. Co. v. Philyaw, 94 Ala. 463, 10 So. 83; Jones v. Gainer, 157 Ala. 218, 47 So. 142, 131 Am.St.Rep. 52; Price v. Bell, 91 Ala. 180, 8 So. 565. And the fact that it is pleaded together with the alleged written memorandum does not make it repugnant thereto or variant therefrom. Eason v. Roe, 185 Ala. 74, 64 So. 55.

It is next urged against the bill by respondent J.E. Penney that it does not appear by the contract of sale that there should be an abatement of the purchase money because of the alleged dower interest of Kate M. Penney. The bill avers an agreement by Penney to convey the land and his refusal to do so. The bill containing equity as against this particular respondent for the specific performance of a contract, the complainant, on proper proof, is entitled to an abatement pro tanto of the purchase money. Bell v. Thompson, 34 Ala. 633.

The respondent Kate M. Penney demurs to the bill and insists that it does not appear therefrom that J.E. Penney was authorized in writing to contract to convey her interest in the land. In answer to this contention it is insisted by complainant that under the averments of the bill both defendants were represented in the negotiations for the sale of the land, and that the portion of the consideration that was paid "was received by the defendants, and used and appropriated by them," and that complainant was put in possession of the land after said sale, and that therefore the sale is valid. Such averments would take the transaction outside of the statute of frauds. (Powell v. Higley, 90 Ala. 103, 7 So. 440), but another statute (Code, § 4494) prohibits the alienation of her lands by the wife without the assent and concurrence of her husband, such assent and concurrence to be manifested by his joining in the alienation in the mode prescribed by law; and our Supreme Court, in construing this statute in a case of this kind, has held that, unless the bill alleges such written authority, it must be held that the husband had no such authority, and that, unless he did have it, the contract was unenforceable against his wife (Wood v. Lett, 195 Ala. 601, 71 So. 177). It follows that Mrs. Penney's demurrer to the main feature of the bill should be sustained. The complainant seeks by averring in the alternative to get certain relief therein stated, and this alternative pleading is

...