Stacey v. Stacey

• Decision Date: 18 December 1947
• Docket Number: 1 Div. 292.
• Citation: 33 So.2d 898,250 Ala. 187
• Parties: STACEY v. STACEY.
• Court: Alabama Supreme Court

33 So.2d 898

250 Ala. 187

STACEY v. STACEY.

1 Div. 292.

Supreme Court of Alabama

December 18, 1947

Rehearing Denied Feb. 19, 1948.

J M. Coxwell, of Monroeville, and Wm. Hamilton and Powell &amp Hamilton, all of Greenville, for appellant.

C. L. Hybart and R. L. Jones, both of Monroeville for appellee.

GARDNER Chief Justice.

The appeal is from a final decree ordering the sale of a tract of land consisting of 1020 acres for division among the joint owners, and in recognition of complainant's right to specific performance for the sale of timber on the land measuring, as to the pine timber 12 inches and up 6 inches from the ground, and as to the hardwood timber 14 inches and up 6 inches from the ground, all as of date March 12, 1942; also, ordering a reference to the Register for the ascertainment of the amount and value of the timber of said specified dimensions as of date March 12, 1942, still standing on the land, as well also to ascertain what, if any, timber was cut by complainant which was less than the specified dimension.

The Register was also directed to report a reasonable attorney's fee for complainant, to find the balance due on the purchase price of the timber by complainant to defendant, and for the timber purpose above stated the Register was authorized to employ skilled and experienced timber men, with their compensation to be charged as part of the costs of the cause.

Complainant and defendant are brothers, the former a dentist and the latter a practicing physician.

Though the record is somewhat voluminous, yet there is little that need be said in discussion of the case. As we view it, it is largely a question of fact.

Defendant insisted that this 1020 acres could be divided in kind and that a sale for division was not necessary. It appears that only 60 acres of this large tract are in cultivation. Of the remainder, in some portions there is valuable timber, and in others timber that is not so valuable; that some of the lands were broken, some level, some hills, and, indeed, the evidence is convincing that an equitable division could not be had without a sale. This view is sustained by the great weight of the testimony and we entertain the view there could be no question as to the correctness of the decree in this respect.

This leaves for consideration only one other disputed issue, that is, the right of complainant for specific performance of the contract admittedly entered into between these two brothers for a sale of the timber by the defendant to the complainant for the gross sum of fifteen thousand dollars, which contract it appears was made about March 12, 1942. Complainant admittedly was placed in possession of the timber by the defendant and proceeded to cut a large portion of the timber which came within the dimensions of the contract. Complainant in April, 1942, executed a mortgage and a number of notes for the purchase price of the timber, and before this bill was filed had paid the sum of thirteen thousand dollars, leaving a balance of two thousand dollars due. The balance he states he is able and willing and ready to pay, and under the decree of the court the two thousand dollars with interest thereon at 6% is to be deducted from his share of the proceeds of the sale of the property. It is insisted for complainant that quite an amount of timber remains on the place, which belongs to him. The defendant insists that practically all the timber of any value has been cut. But, of course, if complainant is entitled to a decree of specific performance, he is entitled to whatever timber remains upon the land which was of the dimensions specified in the contract at the time it was made on March 12, 1942, that is, 12 inches for the pine and 14 inches for the hardwood, measured 6 inches above the ground, whether the amount thereof be great or small. That the contract of sale has met the statute of frauds, Code 1940, Tit. 20, § 3, does not appear to be questioned. Miller v. Smith, 202 Ala. 449, 80 So. 833; Heflin v. Bingham, 56 Ala. 566, 28 Am.Rep. 776; Goodlett v. Hansell, 66 Ala. 151.

In West v. McKay, 225 Ala. 397, 143 So. 573, this court, in discussing the question of specific performance of an oral contract as to the sale of lands owned by tenants in common, recognized the rule that ordinarily the question of possession is insufficient to meet the requirements of the statute of frauds for the reason that possession is referable to the previous status and right and likewise because the possession cannot in strictness be regarded as exclusive. To that effect the text in 58 C.J. 1010 was cited, as well as the case of Jones v. Jones, 219 Ala. 62, 121 So. 78, with other of our authorities, some of which were recently reviewed in Knight v. Smith, Ala.Sup., 33 So.2d 242. The same text, however, makes note of the holding to the effect that where actual possession is taken by one cotenant to the exclusion of the other and the consideration, or a large part of the consideration, is paid, such acts are together to be regarded as sufficient to meet the requirements of the statute of frauds.

The instant case comes well within this exception to the general rule. The bill in paragraph 3, after a statement of the terms of the contract of sale of the timber and the payment by the complainant of seven thousand dollars with the agreement that he was to pay the balance due upon the timber in monthly installments of two thousand dollars per month, concludes as follows:

'Your Orator further shows unto your Honor that at the time of said sale to him of the 1/2 interest in the timber owned by the defendant, he, the said defendant, placed him in possession of said timber and gave your Orator the following instructions in writing:

"July 27, 1942.

"Received of Jas. H. Stacey Two Thousand ($2,000.00) Making a total of Seven Thousand ($7,000.00). Balance due Eight Thousand (8000.00) with interest, and (2000.00) per month until paid. When paid in full a deed to be given Jas. H. Stacey on timber rights 12 in. pine 14 in. hardwood. No post material to be cut.

"This paper is a receipt and conveys no title.

"A. G. Stacey

"Attest:

"H. L. Stacey."

The respondent in his answer alleges as follows:

'Third. Respondent, in answer to the third paragraph of the bill of complaint admits the allegations of the said paragraph and further shows unto your Honor that said complainant was to have and it was agreed that he was to cut and remove said timber within two years from, to-wit: July 27, 1942. Respondent denies that H. L. Stacey attested the instrument set forth in said paragraph.'

Complainant in his testimony answered in the affirmative the questions as to whether or not the defendant put him in possession of the timber, and that he went to cutting the timber as agreed. The proof further shows that the complainant had some seventeen hands with machinery upon the seventeen hands with madhinery upon the

These two brothers bought this property evidently as a matter of investment, the purchase being made at a Register's sale, and almost immediately thereafter the trade was made selling the timber to this complainant. So far as actual possession was concerned, neither of the joint owners was in the actual possession at the time of this transaction. Indeed, at the time of the transaction. Indeed, at the time of the conversation in regard to the trade it is doubtful that the deed from the Register had been received. Defendant admitted that complainant went into possession of this timber, that is, went to cutting it with his knowledge and consent. And as observed by the court in Miller v. Smith, supra, defendant delivered exclusive possession of this timber to complainant 'in the only way it could be delivered.' [202 Ala. 449, 80 So. 834] As we have indicated, the pleadings show that this question of being placed in possession was not an issue in the case. It was an admitted fact. We have merely pointed out that it was not only admitted by the pleadings but well established and, indeed, admitted by the proof. Under the circumstances here disclosed, therefore, it is clear enough that there was such exclusive possession as suffices to meet the requirements of the statute of frauds.

Though this matter appears not to have consideration in brief of counsel we have thought it appropriate to make these observations in view of our own case of West v. McKay, supra, and to make note as well also of the decision of the Court of Appeals in Barclift v. Peinhardt, 18 Ala.App. 340, 92 So. 208, touching this question.

Some of the argument of counsel for defendant appears to assume that the decree of the court calls for an estimate of the timber remaining at the time of the cutting. But the Chancellor was careful to specify that the Register was to estimate on the reference the amount and value of timber, if any, remaining on the lands of the specified dimensions as of March 12, 1942. There is, therefore, no difficulty in that respect.

There is some argument, also, upon the question of claim for damages on account of disturbance of complainant's employees. True, there was testimony tending to show that defendant did interfere with complainant's employees on more than one occasion and placed signs warning against cutting timber. But the decree made no finding against the defendant in that regard and, therefore, no such question is here presented.

The most serious contention on this appeal appears to relate to the time within which complainant was required under the contract to remove the timber. It is without dispute that complainant has paid thirteen thousand dollars of the purchase money and offered to pay the balance of two thousand dollars upon the execution by the defendant of a deed conveying the timber as...