Angel v. Simpson, 85 Ala. 53

Angel v. Simpson

85 Ala. 53

| Ala. | 1887

SOMEBYILLE, J.

1. The case of Meyer v. Mitchell, 75 Ala. 475, is conclusive of the present case, on the main point relied on by appellant’s counsel for a reversal. The uncertainty in description of the “ 400 acres of land in Colbert’s Beserve ” was entirely removed by proper and legal parol evidence clearly identifying this subject-matter of sale. It was alleged, and satisfactorily proved, that the appellee delivered possession of this land to the appellant, and took possession of the house and lot for which it was exchanged. It appears, moreover, that appellee owned no other land than this 400-acre tract in what was known as the “ Colbert Beserve,” and the appellant owned no other house than that described as “ the house and lot now occupied by James H. Benham.” As to the description of the property sold or exchanged by each contracting party, the written agreement,' or memorandum, was sufficiently certain, when supplemented by the extraneous evidence introduced in aid of identification. *56Meyer v. Mitchell, 77 Ala. 312; Driggers v. Cassady, 71 Ala. 529. The averment of the delivery of the deed by appellee, while it strengthens the force of the evidence of identification, was merely cumulative, and not essential. Hence it was altogether immaterial, that the acceptance of the deed by the appellant was not averred in the bill, even if it could not be inferentially presumed.

2. The agreement to pay appellee one hundred and twenty-five dollars, must be construed to mean so much cash, and needed no explanation.

3. The decree pro confesso, moreover, was an admission of the allegations of the bill; and this cured the alleged imperfection in the description of the lands which were the subject of exchange or sale. The defendant also failed to specially plead the statute of frauds — interposing neither plea, answer, nor demurrer to the bill; and he thereby waived all benefit which might otherwise be claimed under it. Brigham v. Carlisle, 78 Ala. 243; Shakespeare v. Alba, 76 Ala. 351.

We find no error in the record, and the decree of the chancellor is affirmed.