Sherman v. Sherman

• Decision Date: 19 November 1914
• Docket Number: 832
• Parties: SHERMAN v. SHERMAN.
• Court: Alabama Supreme Court

67 So. 255

190 Ala. 446

SHERMAN v. SHERMAN.

No. 832

Supreme Court of Alabama

November 19, 1914

Appeal from Chancery Court, Mobile County; Thomas H. Smith Chancellor.

Suit by Lee Sherman against Alice Sherman. Decree for complainant and respondent appeals. Affirmed.

Rickarby & Austill, of Mobile, for appellant.

Gordon & Edington, of Mobile, for appellee.

GARDNER J.

Bill by appellee against appellant to enforce specific performance of a parol contract for sale of 40 acres of land therein described. It is alleged that plaintiff was put in possession, and has paid part of the purchase money.

While it is necessary, of course, when the contract rests in parol that possession and part payment of the purchase money must concur, yet it is well settled that they need not take place at one and the same time.

"We do not understand that the statutory exception contemplates or requires a payment of purchase money contemporaneous with the letting into possession." L. & N.R.R. Co. v. Philyaw, 94 Ala. 465, 10 So. 84.

That respondent (appellant here) placed the complainant in possession of the land, and which possession has continued, is practically without dispute. The suit is by the son against the mother. Complainant insists that respondent first offered to give him the land, which was wholly unimproved, and afterwards wrote him a letter stating she would sell it to him for $25, which was agreed to; that he paid $15, and tendered the balance, which was refused, and paid into court. The insistence of respondent is that she merely offered to let him have the place to live on as a home, and that she made no sale nor offer to sell, and that no purchase money has been paid.

The evidence in the case consists almost entirely of testimony of the members of the family, and presents an unfortunate situation, as it is in irreconcilable conflict. The letters written by respondent to complainant seem to corroborate the insistence of the latter. It appears that the purchase price, though small, was about the amount respondent had paid for the land at a tax sale purchase; and it is evident that neither she nor her children considered it of much value at that time. Complainant was permitted to remain in possession and thereon. What was in fact its value then is not shown by the record.

The case presents no question of law of general interest, and is largely a question of fact. A discussion of the evidence would be...