Ross v. Parks

• Decision Date: 18 November 1890
• Citation: 93 Ala. 153,8 So. 368
• Parties: ROSS ET AL. v. PARKS.
• Court: Alabama Supreme Court

8 So. 368

93 Ala. 153

ROSS ET AL. v. PARKS.

Supreme Court of Alabama

November 18, 1890

Appeal from chancery court, Jackson county; THOMAS COBBS Chancellor.

Bill to enforce specific performance of a contract to convey land. The title to the land in controversy was in one Jeremiah French. On the 15th day of December, 1887, French agreed, in writing, to convey the land to the complainant, Parks, if Parks would pay him $200 by December 15, 1888. At the execution of this option, 50 cents was paid, and expressed in the contract as the consideration. This contract to sell, or option, was signed by French and his wife, but was not signed by Parks. It was recorded in the probate office, and defendants, Ross and McClendon, had actual notice of its execution. After the execution of this contract, French moved to Texas. Subsequently, Ross and McClendon sent an agent out to Texas where French was, and through said agent offered French $300 for the land in controversy, and thereby, on November 21, 1888, procured a deed from French and his wife conveying to Ross and McClendon the legal title to the land in controversy. Before the expiration of his option, under the contract of French, Parks paid French the $200 purchase money as therein agreed, and received a deed to said lands from said French and his wife, which was executed on and bore the date of 23d of November, 1888. On December 21, 1888, the said Ross and McClendon brought an action of ejectment against Parks to recover the possession of the land in controversy, of which Parks was in possession. Thereupon, on January 29, 1889, Parks filed the bill in this case against said Ross and McClendon, and prayed to have the ejectment suit enjoined; the deed made by French and wife to Ross and McClendon canceled; and to have Ross and McClendon specifically perform the contract entered into by French and wife,-making to the complainant a good and perfect title to the land in controversy. On a final hearing upon the pleadings and proof, the chancellor granted the relief prayed, and the defendants now appeal, and assign this decree as error.

J E. Brown and Watts & Son, for appellants.

L. W. Days and D. D. Shelby, for appellee.

COLEMAN J.

A general rule governing cases of specific performance is that the contract must be mutual, and that either party is entitled to the equitable remedy of a specific performance. Exceptions to this general rule are well established, and one class of contracts to which the exceptions may be applied are those which are unilateral in form. Pom. Cont. §§ 167, 168. The exception as to unilateral contracts has been fully recognized and adopted in this state. The case of Moses v. McClain, 82 Ala. 370, 2 South. Rep. 741, was for a specific performance of the following contract: "For and in consideration of the sum of one dollar in hand paid, I hereby give A. J. Moses an option on my lands and improvements situated near Sheffield, and known as my 'House Place,' containing one hundred and twenty acres, more or less, for the sum of eight thousand dollars. *** This option good for 2 days. [Signed] J. W MCCLAIN." It was contended that Moses, the covenantee, bound himself by no writing, and not having bound himself, he could not in this proceeding hold McClain bound; that the contract not being mutually binding, chancery will not compel its specific performance. The court declared as follows: "Mutuality is frequently said to be one of the conditions of a rightful suit for specific performance. The authorities, however, do not carry it to the length contended for. Where the contract is fair, just, and reasonable in all its parts, and the party sought to be charged has so bound himself as to meet the requirements of the statute of frauds, the election of the other contracting party to treat the contract as binding, and to enforce it, meets all the requirements of the rule. Citing Wilks v. Railroad Co., 79 Ala. 180...