Williams v. Kilpatrick

• Decision Date: 20 January 1916
• Docket Number: 7 Div. 700
• Citation: 195 Ala. 563,70 So. 742
• Parties: WILLIAMS v. KILPATRICK.
• Court: Alabama Supreme Court

70 So. 742

195 Ala. 563

WILLIAMS v. KILPATRICK.

7 Div. 700

Supreme Court of Alabama

January 20, 1916

Appeal from City Court of Gadsden; John H. Disque, Judge.

Bill for specific performance by W.C. Kilpatrick against John N Williams. From a decree denying the relief prayed, but declaring a vendor's lien in complainant's favor respondent appeals. Affirmed.

Goodhue & Brindley, of Gadsden, for appellant.

E.O McCord, of Gadsden, for appellee.

SOMERVILLE J.

When the owner of a homestead which is greater in value than $2,000, or in area than 160 acres, sells a portion thereof, leaving, including the dwelling and contiguous thereto, the maximum value or area allowed by law for the homestead, this amounts to the selection of a homestead to the exclusion of the alienated tract, and the provisions of the Code (section 4161) with respect to the alienation of homesteads have no application. This proposition does not seem to have been heretofore considered by this or any other court, but its propriety cannot be doubted, and it is in harmony with our statutes and decisions. De Graffenried v. Clark, 75 Ala. 425; Marks v. Wilson, 115 Ala. 561, 22 So. 134; Jaffrey v. McGough, 88 Ala. 648, 7 So. 333.

Hence respondent's verbal sale of the 1-acre tract to complainant was sufficient to give him an equitable title, subject only to the wife's inchoate dower right. If complainant chose to accept a conveyance of the land with that incumbrance on it, the failure or refusal of the wife to execute the deed was no obstacle to specific performance.

Declining to grant relief to complainant by specific performance, because not reasonably satisfied by the evidence to that conclusion, the chancellor nevertheless found that complainant was entitled to recover of respondent a money value of $35 received by respondent as the consideration for a conveyance of the land, for enforcing the collection of which a lien was decreed on the land itself. The propriety of this decree is challenged: (1) Because no allegations of the bill make a case for such relief; and (2) because, in any event, the evidence does not support the necessary findings of fact.

The first objection is based mainly on the theory that the allegation that the purchase price agreed on and paid was $50 is fatally variant from the fact shown, namely, that the real consideration for the land was the difference in the value of the mares exchanged between them.

For the purposes of this proceeding, it is of no consequence whether the agreed consideration was expressed in terms of cash or of some equivalent in property or other element; nor can it matter that the consideration proven is less than that alleged, if it be fair and reasonable. The averment of a consideration of $50 in the bill was evidently but an attempt to state the value in money of what was actually paid in property, and "proof of a different consideration which does not change the essential rights of the parties, nor destroy the right of redress, cannot be treated as a variance." Cooper v. Parker, 176 Ala. 122, 125, 57 So. 472, 473. The first objection is therefore without merit.

The evidence convinces us that the actual consideration for respondent's agreement to sell and convey the land to complainant was the difference between the values of their respective mares. We are further satisfied that this difference was not less than $35, and that this was at least as much as the acre of land was worth. These...