Trammell v. Craddock

• Decision Date: 24 June 1891
• Citation: 93 Ala. 450,9 So. 587
• Parties: TRAMMELL ET AL. v. CRADDOCK ET AL.
• Court: Alabama Supreme Court

9 So. 587

93 Ala. 450

TRAMMELL ET AL. v. CRADDOCK ET AL.

Supreme Court of Alabama

June 24, 1891

Appeal from chancery court, Tallapoosa county; S. K. MCSPADDEN Chancellor.

Action for specific performance by A. M. Craddock and others against R. J. Trammell, administrator, etc. From a decree overruling certain demurrers defendants appeal. Affirmed.

J M. Chilton and S. O. Houston, for appellants.

John A. Terrell, for appellees.

MCCLELLAN J.

This is a bill filed by the heirs at law of Theodora W. Trammell against the heirs at law of D. W. Trammell, and seeks to have certain lands alleged to have been purchased by the said Theodora from the said D. W. conveyed to the complainants. The bill alleges that the parties to this sale and purchase were husband and wife; that the wife held a note against the husband for $1,600, which she acquired by assignment from her father, to whom it was executed prior to the marriage; that in the year 1881 said Theodora "purchased of her husband, D. W. Trammell, a certain tract of land [describing it] in Tallapoosa county, Alabama, for the sum of sixteen hundred dollars, and she paid said sum by surrendering said promissory note to her husband, the said D. W. Trammell, and that she went into immediate possession of said lands on and under said purchase, and that her said husband so recognized her in the possession of said lands," but did not make her a deed thereto owing to the marital relation existing between them; and she continued in possession up to the time of her death, in 1888, the husband having died the year before, and that upon her death these complainants went into possession, and have continued therein to the filing of the bill. Several grounds of demurrer were assigned against the bill. Of these the first and fourth, respectively, are that "said bill asks for a specific performance, and does not state with sufficient distinctness the terms of the contract between D. W. Trammell and his wife;" and (4) "it is not averred in the bill that Theodora W. Trammell took possession of the lands set forth in the bill." These grounds of demurrer were sustained. The second, third, fifth sixth, and seventh assignments of demurrer proceeded on the theory that the bill showed that the contract of sale and purchase between Trammell and his wife was not in writing, and failed to show such possession under it in the wife as, in connection with payment of purchase money, took it out of the statute of frauds. These grounds, were overruled, and this appeal brings under review the action of the court in that regard.

It is thoroughly well settled that in counting, either at law or in equity, upon a contract which the statute requires to be in writing, it is unnecessary to allege the fact that it is in writing. The question whether or not it is vitiated by noncompliance with the statute of frauds properly arises on a plea or answer, and the infirmity resulting from the absence of a writing may be availed of on the evidence. Dexter v Ohlander, 89 Ala. 262, 7 South. Rep. 115. Where, however, the bill or complaint avers that the contract is not in writing, the defense may be taken advantage of by demurrer; but the fact must clearly and affirmatively appear on the face of the bill before this mode of defense can be resorted to. ...