Wood v. Lett

• Decision Date: 03 February 1916
• Docket Number: 6 Div. 207
• Citation: 71 So. 177,195 Ala. 601
• Parties: WOOD et al. v. LETT et al.
• Court: Alabama Supreme Court

71 So. 177

195 Ala. 601

WOOD et al. v. LETT et al.

6 Div. 207

Supreme Court of Alabama

February 3, 1916

Appeal from Chancery Court, Jefferson County; A.H. Benners Chancellor.

Action by Mrs. J.E. Wood and another against Mrs. L.M. Lett and another. Decree sustaining demurrer to the bill, and plaintiffs appeal. Affirmed.

H.K White, of Birmingham, for appellants.

George E. Bush, of Birmingham, for appellees.

SAYRE J.

The original bill in this cause was filed by the appellant Mrs Wood, a married woman, for the reformation of a contract in writing, purporting to be an agreement between appellee Mrs Lett on the one part and appellant Mrs. Wood on the other, by which said appellee was to sell a certain tract of land to appellant, in exchange for which appellant was to convey a certain other tract, said tracts being owned in severalty by Mrs. Lett and Mrs. Wood, respectively, and for the specific performance of the contract according to its alleged true intent and purpose. There were other stipulations, but they do not seem to affect the question raised by this appeal, and need no further reference. The instrument, exhibited with the bill as amended, witnessed an agreement for the exchange of lands such as we have noted, "for and in consideration of the sum of one dollar in hand paid by Mrs. Lett and other valuable consideration," and was by its terms to be performed after abstracts of title should be "brought down and turned over to each contracting party within ten days." Apart from the sum of $1, which, according to the recital of the instrument, passed from the defendant (appellee) to the complainant (appellant), no consideration other than mutual promises passed between the parties. There was, of course, no mutual delivery of possession, as was the case in Goodlett v. Hansell, 66 Ala. 151. The cash consideration passing from defendant to complainant might seem to indicate a purchase by the former of an option to have an exchange, had the agreement been properly executed by the latter; and, had this instrument on both parts been completely executed to affect the interests of the parties in their respective lands, then, of course, these mutual promises to convey, apart from the option, would have constituted valuable and sufficient considerations each for the other. But, as the court observed in regard to an analogous agreement in Linn v. McLean, 85 Ala. 250, 4 So. 777, which is the major and which the minor factor it is not so easy to determine. We shall assume, however, agreeably with what appears to be complainant's view of the case, that the instrument in question witnessed merely mutual agreements to convey tracts of land each for the other.

This instrument was signed at the foot by the husbands of the respective owners. But their names did not appear in the body of the instrument, nor did they sign as contracting parties; the only purpose of their signatures being to witness their assent to and concurrence in the agreement on the part of their respective wives, for which purpose their mere signatures would have been sufficient, had the wife been otherwise bound. Rushton v. Davis, 127 Ala. 277, 28 So. 476. It was also subscribed, to use the term employed by the statute of frauds, by Mrs. Lett, while Mrs. Wood's execution of it was evidenced in this manner: "Mrs. J.E. Wood, by J.S. Wood, Agt." In the bill as last amended, J.S. Wood, the husband, then for the first time coming in as a party complainant, it is averred that:

"Complainant Mrs. J.E. Wood, acting through her husband, complainant J.S. Wood, entered into a [the] contract with both defendants."

It is nowhere made to appear that J.S. Wood had any written authority to execute the agreement as the agent of his wife. It must on demurrer be assumed that he had no such authority (Knox v. Childersburg Land Co., 86 Ala. 180, 5 So. 578), and from the course adopted by complainant in meeting by successive amendments the several demurrers interposed to her bill, it is clear that this assumption is in accord with the fact.

It has been determined in this court that this agreement, not having been subscribed by complainant, nor by any other person by her thereunto lawfully authorized in writing, as required by certain sections of the Code, to which we will refer, could not be enforced against her, even though the agreement had been partially performed. Morris v. Marshall, 185 Ala. 179, 64 So. 312. But the question here is whether, in these circumstances, it can be enforced at her instance and for her benefit.

So far as the statute of frauds is concerned, it is the settled law of this court that all the purposes of that statute are satisfied, all just apprehension that the agreement will not be mutual in operation is removed, when the party who has not subscribed a contract for the sale of lands resorts to equity for its specific performance, thereby adopting the contract and rendering it obligatory upon himself. Such is the rule where the complainant is sui juris in respect of the contract he seeks to enforce. His submission to the court, that it may do equity in the premises, supplies that mutuality of remedy which is essential to the obligation of bilateral contracts. Linn v. McLean, supra; Chambers v. Alabama Iron Co., 67 Ala. 353.

But the trouble with complainant's bill arises out of the fact that she was not sui juris in respect of the contract alleged. It arises out of her personal disability to enter into such contracts, except in a certain exclusive and mandatory manner prescribed by sections 3355 and 4494 of the Code. These sections require that (3355):

"Conveyances for the alienation of lands *** must be signed at their foot by the contracting party, or his agent having a written authority."

And (4494):

"The wife *** cannot alienate or mortgage her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land."

The husband signed the instrument for himself and as agent for his wife, but he had no authority, such as the statute requires, for executing it in the name of the wife. Thereby he did not join in an alienation, nor in an agreement to alienate, executed by the wife in the manner prescribed by law for the execution of conveyances of land by her, nor can his joinder in this bill be accepted, on the doctrine of relation, as an equivalent for the requirement of the statute, which contemplates an assent and concurrence manifested in a particular and exclusive mode at the time of the execution and delivery of the contract. The obligation of the paper writing exhibited with complainant's bill must therefore, in equity as in law, be determined as of the time of its execution. There can be no doubt that in a court of law, or anywhere as against the wife, this agreement would be held to confer no color of right or interest. Scott v. Cotten, 91 Ala. 629, 8 So. 783; Rooney v. Michael, 84 Ala. 585, 4 So. 421; Blythe v. Dargin, 68 Ala. 370.

In Morris v. Marshall, and the other cases cited supra, and in still others of a similar character that might be cited, the effort was to enforce against the wife verbal executory agreements for the sale of her lands, whereas here the wife seeks to enforce such an agreement; but the consideration here in point is that these cases, which had no reference to the statute of frauds, proceeded expressly upon the theory that the wife had no capacity to alienate her lands, except as required by the Code; this consideration being elaborately demonstrated in Blythe v. Dargin, in which case the wife had signed and possession had been...