Tidmore v. Handy

• Decision Date: 28 May 1964
• Docket Number: 7 Div. 575
• Citation: 277 Ala. 20,166 So.2d 855
• Parties: Pat TIDMORE v. Sarah HANDY.
• Court: Alabama Supreme Court

Page 855

166 So.2d 855

277 Ala. 20

Pat TIDMORE v. Sarah HANDY.

7 Div. 575.

Supreme Court of Alabama.

May 28, 1964.

Rehearing Denied Sept. 3, 1964.

Hinton & Torbert and Rowan S. Bone, Gadsden, for appellant.

Dortch, Allen & Meighan, Gadsden, for appellee.

PER CURIAM.

This appeal is from a decree of the Circuit Court of Etowah County, in Equity, sustaining demurrer to the amended complaint and dismissing the suit.

The prayer of the bill, in addition to a general prayer for relief, is for a specific performance of an alleged contract or agreement to convey certain described real estate. We quote from the amended complaint the allegations of fact giving rise to the alleged contract or agreement:

'TWO: That on or about, to-wit: April, 1948, the complainant was approached by the Respondent, Sarah Handy, and J. C. Handy, the said J. C. Handy being now deceased, and the said Sarah Handy having been granted letters testamentary upon said estate as aforesaid set forth, and at said time and said place, in April, 1948, the said Sarah Handy and J. C. Handy represented to the Complainant that they were the owners of certain real estate hereinafter described in Paragraph Three hereof, located in Etowah County, Alabama.

'THREE: That the Respondent, Sarah Handy, and the said J. C. Handy, now deceased, on or about April, 1948, represented to the Complainant, that being the owners of that certain real estate described as follows, to-wit: [Description here omitted] that they would grant him right to use and the benefit of the hereinabove described property during their lifetime for and in consideration of the Complainant furnishing to them, produce, and milk, and further that he would render them, during their lifetime, such aid and assistance in and about the upkeep of their home that they might need and for and in consideration of the above services that they would, on the death of the survivor, if not sooner done, vest in your Complainant a fee simple title to the above described real estate.

'FOURTH: Your Complainant avers that acting in accordance with this agreement, he went into possession of the above described property and has farmed said property, investing much of his time, labor, and money in and about the development of the property, the improvement of same, and the construction of buildings in and about said property, and has furnished to the Respondent, Sarah Handy, and J. C. Handy, now deceased, produce and milk, and has rendered aid and assistance in accordance with the original agreement, and has performed all acts required to be done in said agreement.

'FIVE: Complainant avers that since the death of the said J. C. Handy, the Respondent, Sarah Handy, has, by her acts and conduct toward Complainant, indicated that she intended to sell the above described real property, and that accordingly, Complainant would not receive fee simple title to said property in accordance with the agreement heretofore referred to, and now may lose all, of his labor, time and money which he has expended in and about the fulfilling the agreement heretofore referred to. Complainant further avers that a will, allegedly the Last Will and Testament of J. C. Handy, deceased, was filed in the Probate Office of Etowah County, Alabama, on 20 June, 1960, and that a copy of said will is attached hereto, and incorporated herein by reference as Exhibit 'A'. Complainant avers that by the terms of said will, that the Respondent, Sarah Handy, either individually, or as Executrix of the estate of J. C. Handy, is given the right to sell and convey any of the property of the deceased, J. C. Handy. That the only property which the said J. C. Handy, deceased, owned at the time of his death was his interest in the property described in Paragraph Three hereof.'

We are not certain from the above allegations whether the vesting of fee simple title was to be done by deed or will, but in either aspect the demands of the Statute of Frauds of Alabama, if properly pleaded, must be met.

We held in the case of Vickers v. Pegues et al., 247 Ala. 624, 626, 25 So.2d 720, as follows:

'But, it is now settled in this state that an oral agreement to make a will devising real estate, unaccompanied by payment of some valuable consideration and delivery of possession of the land to be devised, is void under the provisions of our statute of frauds (§ 3, Title 20, Code of 1940). Manning v. Pippen, supra [86 Ala. 357, 5 So. 572]; Allen v. Bromberg, supra [147 Ala. 317, 41 So. 771]; Mayfield v. Cook et al., 201 Ala. 187, 77 So. 713.'

The statute of frauds, Title 20, § 3(5), reads as follows:

'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 other interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof be paid, and the purchaser be put in possession of the land by the seller.'

See also Shannon v. Wisdom, 171 Ala. 409, 55 So. 102(3).

It is to be noted that subsection (6) of § 3, Title 20, Recompiled Code of 1958 (Act No. 645, Acts of Alabama 1951, Vol. II, p. 1109), did not become effective until September 4, 1951, which was after the date of the alleged agreement or contract here under consideration.

We do not think this provision requiring '[e]very agreement, contract or promise to make a will or to devise or bequeath any real or personal property or right, title or interest therein,' to be in writing would have any effect or bearing on the alleged agreement or contract alleged to have been made in April, 1948.

A ground of demurrer to the amended complaint is as follows: '16. Construed most strongly against the pleader said complaint shows on its face that the agreement relied on is void under the Statute of Frauds.' Other grounds of similar import appear.

"The statute of frauds is a matter of defense, which must, generally, be insisted on by answer or by plea. Patterson v. Ware, 10 Ala. 444. But when it clearly appears, from the averments of the bill, that the contract or agreement sought to be enforced is within the statute, the party to be charged may demur. * * *" Shannon v. Wisdom, 171 Ala. 409, 55 So. 102(5); Bunch v. Garner, 208 Ala. 271, 94 So. 114 (1); Tolleson v. Henson, 207 Ala. 529, 93 So. 458(5); Bullen v. Bullen, 231 Ala. 192, 164 So. 89.

The omission from the bill of complaint of an averment that the contract or agreement was in writing does not within itself clearly demonstrate that the agreement is obnoxious to the statute of frauds. Such an averment is not necessary. We quote from Dexter v. Ohlander, 89 Ala. 262, 7 So. 115(1), as follows:

'The complaint failed to aver that either the lease or plaintiff's relinquishment or surrender of it was in writing, and demurrers were interposed to each of its two counts, on this ground. These demurrers were properly overruled. Granting defendant's position, that both of these contracts were required by the statute of frauds to be in writing, and conceding that the declaration is upon the lease and the relinquishment of it, the authorities are uniform that the fact need not be alleged, but is a matter which properly arises on proof. Perrine v. Leachman, 10 Ala. 140; Rigby v. Norwood, 34 Ala. 134; Martin v. Wharton, 38 Ala. 637.'

See also Trammell v. Craddock, 93 Ala. 450, 9 So. 587; Moore v. Whitmire, 189 Ala. 615, 66 So. 601(2).

It is our opinion that it does not clearly and affirmatively appear from the averments in the complaint that the alleged agreement or contract contravenes the statute of frauds; hence the ground of the demurrer raising such contravention is without merit.

Challenge is made by the demurrer that the amended bill of complaint shows on its face that not all necessary parties to the bill are before the court.

While this ground of demurrer is deficient for failure to state the name of the party omitted (Gordon v. Gleason, 267 Ala. 351, 101 So.2d 542(3), we assume arguendo that it refers to Treasure Tidmore, who is made cross-respondent in respondent's cross bill, and who appeared and filed demurrer thereto.

'We held in Craft v. Russell, 67 Ala. 9(7):

'The appellant further assigns as error, the overruling of his demurrer, which was based upon the suggestion that Tousmiere should have been made a party to complainant's bill. The rule of practice established in ...