Alba v. Strong

94 Ala. 163 | Ala. | 1891

STONE, C. J.

— The following propositions must be regarded as settled by the former decisions of this court beyond controversy : First, that to authorize the specific enforcement of an agreement to sell land, all the terms of the agreement must have been agreed on, leaving nothing for negotiation. Second, that all the terms of the agreement viz., the names of the parties, the subject-matter of the contract, the consideration and the promise, must be in writing, signed by the party sought to be charged, or by his agent thereunto authorized in writing. — Code of 1886, § 1732. Third, that it is not essential that the paper evidence of the agreement be in any particular form, provided it contain the substance, as stated above. Fourth, that the written evidence of the terms of the agreement need not all be expressed in one paper. If expressed in two or more papers, it will be sufficient, if collectively they contain enough, and refer to each other, and show the connection with sufficient clearness, without the aid of oral testimony. If, however, oral testimony is required to connect the papers, or to supply any essential term of the contract, then there is a failure to make a case for specific performance. Waterman on Specific Performance, § 231; Fry Spec. Per. § 72; Carter v. Shorter, 57 Ala. 253; Phillips v. Adams, 70 Ala. 373 ; Horton v. Wollner, 71 Ala. 452; Norman v. Molett, 8 Ala. 546.

Jenkins v. Harrison, 66 Ala. 345, is not opposed to these views. On the contrary, it re-affirms them. In that case, the original memorandum was conceded to be insufficient, but a formal deed was signed, which, though not delivered, was sufficient of itself to take the case- without the influence of the statute of frauds. Speaking of that deed and another, simultaneously sigred, this court said: “Of themselves, the deeds import a bargain and sale of the fee-simple estate in lands, which are particularly described; and the bargainor and bargainee are clearly stated.” If the original, imperfect memorandum had been entirely omitted, the non-delivered deed contained all the terms of the contract, was signed by the party sought to be charged, and was sufficient.

In the case in hand, the writing neither expresses the quantity of the land, nor any description by which it can be determined what land was intended to be bought or sold. This, according to the averments of the bill, rests entirely in parol. The chancellor did not err in sustaining the demurrer to the bill.

Affirmed.