Westbrook v. Hayes

• Decision Date: 04 June 1903
• Citation: 34 So. 622,137 Ala. 572
• Parties: WESTBROOK ET AL. v. HAYES.
• Court: Alabama Supreme Court

34 So. 622

137 Ala. 572

WESTBROOK ET AL. v. HAYES.

Supreme Court of Alabama

June 4, 1903

Appeal from Chancery Court, Walker County; John C. Carmichael Chancellor.

Bill by H. T. Westbrook and another against John N. Hayes for the specific performance of a parol contract to convey land. From a decree dismissing the bill, complainants appeal. Affirmed.

Curtis & Hipp, for appellants.

M. F Parker and D. A. McGregor, for appellee.

HARALSON J.

The bill in its second paragraph avers, "That during the month of January, 1892, or about that time, your orator, H T. Westbrook, bought from defendant [[the forty acres of land which is described] lying and being in Winston county Alabama, and defendant sold said above described land to him." In the third section it is averred, "That the contract price of said land bought from defendant was agreed on, as one hundred and twenty-five dollars, the same to be paid in machinery, and your orators aver that said Westbrook at the time of purchase, paid the defendant the contract price of said land, paying therefor the machinery agreed upon, consisting of an engine, etc. * * * which was accepted by the defendant in payment for the land so bought and above described." In the fourth it is averred, "That defendant agreed to execute to said H. T. Westbrook a good and sufficient deed to said land, conveying all his right, title and interest in the same to him, and further agreed to have his wife sign the same for the purpose of relinquishment her dower interest in same, and that he would deliver the same to said Westbrook."

In the fifth paragraph it is set out, "That the said Westbrook went into possession of said land under said sale and purchase, having absolute faith in the promise of the defendant to execute to him a title to said land, and that he remained in possession paying taxes on said land for three years, or until about 1895 or 1896, when defendant and said H. T. Westbrook, one of the complainants, had a settlement of their private business affairs, and in that settlement, this same land was agreed to be conveyed to him for the consideration herein-above mentioned, which he had paid," etc.

Respondent answered that complainant, Westbrook, contracted with him for said land, at and for $125, on or about October 1, 1891. He admits that he bought a third interest in the machinery referred to, and no more, on or about the 1st October, 1893, but that he paid for said machinery both out of his individual money and out of his interest in the net proceeds of said machinery, as was agreed to by said Westbrook. He denies that said machinery was bought in payment of said land or any interest therein, and avers that said land was never paid for. The contract was oral, and it is not denied, that at the time it was entered into, the respondent did not have the legal title to the land, but had merely a bond for title; and he avers, that he was to make a deed to Westbrook when he acquired the title and the purchase money was paid for the land, and that, so far as he was concerned, he had been ready to make said deed, since the 8th May, 1894, the date he received his deed to the land. He further states, that said Westbrook went into possession of the land, on or about March 1, 1893, under said contract of purchase, and remained in possession until August, 1895. It appears he sold the premises to complainant, Bates, and made him a deed thereto, with the exception of a small part thereof, of about one and a half acres, which he sold to D. H. Griggs.

It is said in Allen v. Young, 88 Ala. 340, 6 So. 747,--a rule theretofore and since adhered to in this court,--that "in suits for specific performance of parol contracts respecting the sale of lands, the rules of equity pleading require that the contract shall be distinctly, definitely and precisely averred, so that the court may not be left in inference, or in uncertainty as to its terms, or as to the rights of the parties. In no other class of cases is correspondence between the allegations of the bill and the proofs produced to establish them more rigidly exacted. It is not sufficient that some agreement be proved. If the evidence fails to satisfactorily establish the particular agreement alleged in the bill, or leaves any of its material averments in doubt or uncertainty, equity will not lend its aid to enforce its specific performance. The complainant's case must be clearly made out, in harmonious pleading...