Carroll v. Powell

48 Ala. 298 | Ala. | 1872

PECK, C. J.

The only questions which will be considered in this opinion are those arising on the plea of the statute of frauds. The view we take of this statute renders necessary the reversal of the judgment, and will probably be decisive of the case on another trial.

The sale set out in the complaint is undoubtedly within the statute of frauds, and void, unless it is withdrawn from the influence of the statute by the evidence of the plaintiff. This ’ the plaintiff does not deny, but insists that the evidence is sufficient for that purpose. Before examining this evidence, the demurrer of defendant to the plaintiff’s special replication to the plea of the statute of frauds should be disposed of. In doing this, it is enough to say, the said demurrer was improperly overruled. The fact that defendant went into possession of the land mentioned in the complaint, as stated in said replication, and continued to hold the same up to the commencement of the suit, claiming to own said land under said sale, was no answer to said plea. The statute requires the purchase-money, or a portion thereof, to be paid, and that the purchaser be put in possession of the land by the seller; otherwise the sale is void.' — Rev, Code, § 1862. Neither of these is sufficient of itself; both are required by the statute, and one is as necessary as the other.

We will now proceed to examine the plaintiff’s evidence to avoid the plea of the statute of frauds.

This evidence consists of the oral examination of the plaintiff as a witness in his own behalf, and a written memorandum, in the words and figures following, to-wit: “ Sale bill of the estate of John Anderson, deceased, March 14th, 1868. 80 acres of land, east half of the southeast quarter of section twenty-four, township eleven, range six. Bought by A. Carroll at $400.” Section 1863 of the Revised Code says: “When goods, or-things in action, are sold, or lands, tenements or hereditaments sold or leased at public auction, and the auctioneer, his clerk or agent, makes a memorandum of the property, and price thereof at which it is sold or leased, the terms of sale, the name of the purchaser, or lessee, and the name of the person on whose account the sale or lease is made, such memorandum is a note of the contract, within the meaning of the preceding section.” The foregoing memorandum by no means complies with what is required by said section.

1. It is not signed, nor does it otherwise appear that it was made by the auctioneer, his clerk or agent; but, on the contrary, the oral evidence of the plaintiff, if admissi•ble and competent for that purpose, shows it was made by neither, but was made by the plaintiff himself. True, he says he acted as clerk; he does not,' however, say he acted as the clerk of the auctioneer, or that he was appointed by the auctioneer to do so. His whole evidence, taken together, shows that he assumed to act as clerk of his own motion, without any appointment or authority of the auctioneer for that purpose,

If said memorandum was sufficient in form, and was signed by the plaintiff, it would not bind the defendant, without his assent, nor would it take the sale out of the influence of the statute. — Hutton v. Williams, 35 Ala. 503.

2. It does not state, “the name of the person on whose account the sale was made.” It begins, “ Sale bill of the estate of John Anderson, deceased;” but this gives us no information on this subject. It does not inform us whether the sale was made on the account of an executor or administrator of the deceased, or whether it was made on the account of some person to whom the land was devised to be sold, or by some mortgagee or trustee, under a mortgage or deed of trust, made by the deceased in his life-time. For aught that appears by the memorandum, it may have been made on the account of some one, or either of such persons; certain, it is, it does not state the sale was made on the account of the plaintiff, as executor of said deceased.

3. It does not state the terms of the sale, whether for cash or on credit. It is, however, insisted by appellee’s counsel, that as it is not stated whether the sale was for cash or on credit, the law presumes it was for cash. Admit this to be true, in ordinary sales, it does not, in cases like the present, answer the requirements of the statute. The statute requires the terms of the sale to be stated as a part of the memorandum. If the terms of the sale, or of any one of them, depend upon inference, or stand upon a legal presumption, such inference or presumption may be rebutted by oral evidence. This would leave the terms of the sale uncertain, and to be determined by the evidence of witnesses, and thus the doors to frauds and perjuries would be opened which the statute intended to close.— Knox v. King, 36 Ala. R. 367; Adams v. McMillan, Ex’r, 7 Por. 73. This latter case is, in many respects, very like the present. The sale was of lands, made at public auction by an executor claiming to sell under a power in the will of his testator. The defense was the statute of frauds, and the question was, the sufficiency of the memorandum made to take the case out of the statute. Judge Ormond, delivering the opinion of the court, says: “It is n6w settled that a writing, no matter what may be its particular form, will be a sufficient memorandum, or note in writing, as required by the statute; provided, it contain the essential terms of the contract, expressed with such certainty that they may be understood from the instrument itself, or from some other writing to which it refers, without recourse to parol proof, and be signed by the party to be charged thereby.” From this case we see that a defective memorandum can not be helped out by parol proof; and as no written evidence was offered in this case, for the purpose of aiding the memorandum, the court improperly permitted the same to be read to the jury, against the defendant’s objection.

After the evidence was closed, it being all set out in the bill of exceptions, the defendant asked the court to give several written charges, numbered from one to eleven, all of which, except the ninth, were refused. We think the 2d, 7th, 8th, and 10th charges should have been given. They have reference to the written memorandum, and are in harmony with the view we have taken of it.

Let the judgment be reversed, and the cause remanded for another trial. The appellee will pay the costs.