Arrington v. Porter

47 Ala. 714 | Ala. | 1872

B. E. SAEEOUD, J.

The material question at issue in this case is, whether a verbal contract rescinding a sale of land, the purchase-money not having been paid, executed by the vendor receiving possession of the land and using* it as his own, is within the statute of frauds.

The rescission of a sale of land which has been completed, is virtually a sale of the land by the vendee to the vendor. Possession by the purchaser with the consent of the vendor, under a parol contract of sale, takes the case out of the statute of frauds, but the possession must be under the contract. — Danforth v. Laney, 28 Ala. 274. A purchaser who has paid the pmchase-money, and has obtained possession under a parol contract, is entitled to a specific execution of the contract. — Brewer v. Brewer & Logan, 19 Ala. 481. If the proof establishes that Arrington received possession of the land with the consent of Stacey, under a parol contract rescinding the former sale, the purchase-money not having been paid by Stacey, then there was only needed the proper conveyance to complete the sale. This, either party could enforce. The purchase-, money was virtually paid, and the debt sued for in this case was extinguished.

It was not stated with what view the plaintiff, Arrington, offered in evidence the record of his chancery suit against Stacey. We presume it was intended to show an adjudication of the question whether there had been a rescission of their contract. Porter was not a party to that suit, and the .decree was pro. confesso. .Stacey had become bankrupt, and was doubtless indifferent to the result of the chancery proceeding. It ‘sought only to appropriate the land to the payment of the debt, and that had already been done. Li some instances, a judgment against the principal is made conclusive upon his sureties by statute, as in the cases of Williamson v. Howell, 4 Ala. 693, and McClure v. Colclough, 5 Ala. 65. The general rule, however, is, that a recovery against the principal can not be used as evidence to charge the surety, unless his contract binds him to the result of legal proceedings against his principal. When the judgment is binding on the surety at all, it is conclusive. He is either a party, or privy, or a stranger. — Fireman’s Ins. Co. v. McMillan, 29 Ala. 147. There was no error in excluding the record of the chancery suit.

There is no error in the action of the court to which the appellant has a right to object.

The judgment is affirmed.