Smith v. Thomas, 5 Div. 93.

• Decision Date: 17 December 1931
• Docket Number: 5 Div. 93.
• Citation: 224 Ala. 41,138 So. 542
• Parties: SMITH ET AL. v. THOMAS.
• Court: Alabama Supreme Court

138 So. 542

224 Ala. 41

SMITH ET AL. v. THOMAS.

5 Div. 93.

Supreme Court of Alabama

December 17, 1931

Appeal from Circuit Court, Coosa County; E. P. Gay, Judge.

Action by J. A. Smith and others against Lawrence Thomas, to recover for timber cut and removed by defendant from lands belonging to plaintiffs. From a judgment for defendant, plaintiffs appeal.

Reversed and remanded.

Henry A. Teel, of Rockford, and L. H. Ellis, of Columbiana, for appellants.

J Sanford Mullins and Richard H. Cocke, both of Alexander City for appellee.

ANDERSON C.J.

The sale of the timber in question is regarded as involving real estate and, in order to be valid and binding, under the Statute of Frauds, had to be in writing. Section 8034 of the Code of 1923; Miller v. Smith, 202 Ala. 449, 80 So 833; Colbey-Hinkley Co. v. Jordan, 146 Ala. 634, 41 So. 962. Indeed, this proposition is not controverted by appellee, but it is insisted that the transaction here falls within the exception as a part of the purchase money was paid and the defendant was put into the possession of the land.

There is a sharp conflict in the evidence as to whether the purchase of the Smith estate timber was one entire purchase or in separate lots; but from the view we take of this case this is of no great importance, for, conceding that the purchase was of the entire tract at one time, we think that the defendant has failed to establish a valid contract of sale or that the facts shown remove the sale from the influence of the statute of frauds. In the first place, it may be questionable as to whether the oral contract was complete, as no time was fixed for the payment of the purchase money, other than the cash payment, or within which the timber should be removed; but, be this as it may, in order to remove the sale from the inhibition of the Statute of Frauds, the payment of the purchase money must be made to the owners or one legally authorized to sell the property and the possession delivered must be the property sold, not a mere undivided interest in same. Barclift v Peinhardt, 18 Ala. App. 340, 92 So. 208. The evidence at best shows that part of the purchase money was paid to J. A Smith and possession was delivered by him to defendant or a portion of the tract or tracts, but the evidence shows that said Smith owned only an undivided interest with several others, including minor children, and could make no binding contract or delivery of...