Smith v. Smith

• Decision Date: 15 February 1985
• Docket Number: No. 83-168,83-168
• Citation: 466 So.2d 922
• Parties: Ray M. SMITH v. Roy J. SMITH.
• Court: Alabama Supreme Court

Page 922

466 So.2d 922

Ray M. SMITH v. Roy J. SMITH.

No. 83-168.

Supreme Court of Alabama.

Feb. 15, 1985.

Herman H. Hamilton, Jr., and Henry C. Barnett, Jr., Capell, Howard, Kanbe & Cobbs, Montgomery, William M. Cunningham, Jr., Mobile, for appellant.

Irvin J. Langford, Howell, Johnston & Langford, Mobile, for appellee.

ADAMS, Justice.

Roy Smith filed suit against his twin brother Ray Smith for specific performance of an oral contract made 17 years earlier for the exchange of two parcels of land. The case was tried without a jury and judgment was rendered in favor of Roy. Ray appeals and asserts as one of his grounds that the trial court erred in not holding that the contract was barred by the Statute of Frauds. We agree.

The facts in this contract dispute are as follows: Ray Smith has title to an 80-acre rectangular tract of land which he originally purchased in 1943. In 1950, Ray acquired, along with his brother Roy and their mother, joint title to a 42-acre tract situated in a cattycornered position to the southwest of Ray's 80 acres. The attached Appendix illustrates the relative positions of these tracts of land. In 1960, Ray and his mother conveyed their interests in the 42-acre tract to Roy. This was done so that Roy could mortgage that property to obtain purchase money to buy an 80-acre tract immediately north of the 42 acres and immediately west of Ray's 80-acre tract.

The parties disagree as to any further significance of the 42-acre conveyance to Roy. Ray contends that the transfer was solely to enable Roy to buy the 80-acre tract to the north, and says he understood that Roy would convey 1/2 of the 42-acre block to Ray when the mortgage was eventually paid. Roy, on the other hand, claims that the conveyance of the 42 acres to him was part of a plan his parents devised whereby Roy would eventually convey 1/2 of the 42 acres to Ray with Ray in turn conveying 1/2 of his 80-acre tract to Roy, thus leading to the ownership of equal acreage by the twins (except for the 80-acre tract Roy purchased with the mortgage money).

Roy conveyed approximately 20 acres of the 42-acre tract to Ray on December 30, 1963. This is the date of the alleged oral contract by which Roy contends that Ray agreed to convey the north 1/2 of Ray's 80-acre tract to Roy. Ray denies such an agreement. In May 1981, Roy brought suit against Ray, asking for specific performance of the oral contract.

Ray herein appeals from the judgment rendered below in favor of Roy. Ray asserts the following as error: 1) the trial court's failure to accept the Statute of Frauds as a bar to enforcement of the oral contract; 2) the trial court's failure to accept the statute of limitations as a bar to enforcement of the oral contract; and 3) the trial court's enforcement of a contract conveying homestead property in spite of the failure of Ray's wife to consent to the contract.

We hold that the lower court erred when it failed to find the oral contract barred by the Statute of Frauds. We pretermit addressing appellant's other assertions of error.

The Alabama Statute of Frauds reads, in pertinent part, as follows:

Certain agreements void unless in writing.

In the following cases, every agreement is void unless such agreement or some note or memorandum thereof expressing the consideration is in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing:

....

(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller.

Code, 1975, § 8-9-2. In Smith v. East Alabama National Bank, 221 Ala. 322, 128 So. 600 (1930), this Court construed an earlier enactment of the Statute in this way:

The prescriptions of the statute of frauds (Code 1923, § 8034) are not to be denied or evaded. The single exception which will withdraw a parol contract for the sale or lease of land from the operation of the statute is, when the purchase money, or a portion thereof, is paid, and the purchaser is put in possession by the seller. Heflin v. Milton, 69 Ala. 354, 357.

221 Ala. at 323, 128 So. at 601.

Therefore, in order for Roy Smith to win his case against his brother Ray, he had to prove not only the existence of the oral contract, but additionally that the contract met the exception to the Statute of Frauds; that is, that Roy gave the required consideration or a part thereof to Ray, and that Roy took possession of the land which was the subject of the contract.

This case was tried ore tenus and the court entered judgment in favor of Roy Smith. The written findings of fact indicate that the court found that the parties had indeed entered into an oral contract to exchange the lands in question, and that Roy Smith performed his obligation under the contract by conveying property to Ray Smith. The court made no findings, however, in regard to the possession of the land which is the subject of the specific performance. As mentioned above, possession is of crucial importance in removing a contract from the stricture of the Statute of Frauds.

The possession requirement of the "part performance exception" to the requirement of a writing in land sales contracts was addressed in Houston v. McClure, 425 So.2d 1114 (Ala.1983). In that case, we reversed a summary judgment entered in a specific performance suit because there was a factual issue as to whether the acts of possession in the case were "referable exclusively to the contract." ¹ This requirement is mentioned in Hagood v. Spinks, 219 Ala. 503, 122 So. 815 (1929), in which the Court said:

To take a case out of the statute of frauds ... upon the ground of part performance, the acts of possession must be clear and definite, and referable exclusively to the contract, and by authority of the vendor. The existence of the contract and its terms should be established by competent proof to be clear, definite, and unequivocal in all its terms. If its terms, or the necessary acts of part performance, are not sustained by satisfactory proof, specific performance will not be decreed. (Citations omitted.)

219 Ala. at 504, 122 So. at 816. The meaning of "referable exclusively to the contract" was discussed in Jones v. Jones, 219 Ala. 62, 121 So. 78 (1929). The Court stated as follows:

The cases also hold that the possession of the purchaser must be exclusively referable to the contract ... "that is to say, it must be such possession that an outsider, knowing all the circumstances attending it save only the one fact, the alleged oral contract, would naturally and reasonably infer that some contract existed relating to the land, of the same general nature as the contract alleged" (36 Cyc. 660)....

219 Ala. at 63-64, 121 So. at 78. The Jones Court went on to say that

... the possession must be referable to the promise and not to some domestic relationship of the vendor and vendee. 36 Cyc. 660, note 77. Where the person having the legal title to land is in possession, it is well established that such possession will be referred to the legal title. Here, the title being in the father, and both father and son being in possession, the law refers the possession to the father. (Citations omitted.)

219 Ala. at 64, 121 So. at 78. The Court went further in adopting the following excerpt:

In 36 Cyc. 660, is the following: "If the possession * * * could be accounted for just as well by some other right or title actually existing in the vendee's favor, or by some relation between him and the vendor other than the alleged oral contract, it is not such a possession as the doctrine requires."

219 Ala. at 64, 121 So. at 79.

Additionally, in Knight v. Smith, 250 Ala. 113, 33 So.2d 242 (1948), it was restated that "our decisions are to the effect that possession must be of a notorious and exclusive character to bring the case within the exception of the Statute [of Frauds]." 250 Ala. at 114, 33 So.2d at 243. In Jones, supra, the Court said that "[i]n some jurisdictions joint possession suffices in cases of this character, while our decisions require the possession to be both notorious and exclusive." 219 Ala. 64, 121 So. at 79. See also Krieger v. Krieger, 276 Ala. 466, 163 So.2d 623 (1964).

It is impossible to determine the reasoning of the trial court in granting specific performance to Roy, since there are no written findings of fact on the issue of possession. From a silent record we can only presume that the court either found that Roy's possession of the land in issue satisfied the part performance exception to the Statute of Frauds, or if not, that the court applied incorrect principles of law to the facts...