Wikle v. McGraw

• Decision Date: 06 November 1890
• Citation: 8 So. 341,91 Ala. 631
• Parties: WIKLE v. MCGRAW ET AL.
• Court: Alabama Supreme Court

8 So. 341

91 Ala. 631

WIKLE v. MCGRAW ET AL.

Supreme Court of Alabama

November 6, 1890

Appeal from city court of Anniston; B. F. CASSADY, Judge.

On the 12th of May, 1887, the appellees, S. F. McGraw and her husband, D. D. McGraw, entered into a contract of sale, by which they agreed to sell to appellant, J. L. Wikle, certain lands specifically described, giving him an option to buy. On his offering to comply with the said contract, they failed and refused to sell and deliver to him a deed to the said lands. Wikle files this bill for a specific performance. The lands in controversy were derived from one Cooper, and they set up as a defense that they were not able to comply with the contract. There were demurrers to the bill, and a motion to dismiss the same for want of equity. On final hearing, the chancellor granted the motion, and ordered the bill to be dismissed. This ruling, together with others, is here assigned as error.

Gordon MacDonald, for appellant.

Brothers, Willett & Willett and G. C Ellis, for appellees.

McCLELLAN J.

A contract to convey land without any specification of any particular title or interest intended to be passed must be held to refer to an unincumbered and indefeasible legal estate in severalty. Goodlett v. Hansell, 66 Ala 151. If, however, the entire fee is not in the party who thus undertakes to transfer it, and has not been since the execution of the contract, equity will not decree specific performance, unless, indeed, the acquisition of the absolute estate by the defendant is practicable, and was in contemplation of the parties when the contract was entered into. Fitzpatrick v. Featherstone, 3 Ala. 40; Goodlett v. Hansell, 66 Ala. 151; Moses v McClain, 82 Ala. 370, 374, 2 South. Rep. 741; 3 Pom. Eq. Jur. § 1405. It is therefore a material inquiry in all cases where the specific performance of a contract to convey is sought whether the party contracting to convey has the estate in or title to the land which he has covenanted to pass into the complainant. In the present case, the contract, under the principles we have adverted to, bound the defendants to the conveyance of a fee-simple absolute estate in the land described. One of the defenses relied on and sustained in the court below was that S. F. McGraw did not own such estate, but that, on the contrary, she held in the land only an undivided interest in common with her children. In support of this contention, reliance is had upon the deed of Charles J. Cooper, from whom whatever interest the defendant has in the land is derived. This deed, omitting its merely formal parts, and its description of the subject-matter, is in the following language: "I, C.J. Cooper, for and in consideration of my affections, and the further consideration of the support and well-being of my daughter, S. F. McGraw, and her children, do hereby give, grant, and convey unto said S. F. McGraw, (wife of D. D. McGraw,) and to her bodily heirs, the following described real estate, *** to have and to hold to her, the said S. F. McGraw, and her bodily heirs for their use and benefit forever; and I will forever warrant and defend the title to the same to the said S. F. McGraw and her bodily heirs against all persons whatsoever." S. F. McGraw had two children at the date of the execution of this deed, and two have...