Cox v. Cox, 59 Ala. 591

Cox v. Cox

59 Ala. 591 | Ala. | 1877

BBICKELL, C. J.—

The bill is filed to enforce the specific performance of a verbal contract concerning lands. To support the bill, the contract must be clearly and distinctly averred, and must appear to be definite and unequivocal in all its terms; and if it is not admitted, the proofs of it must be clear and convincing. If the terms of the contract are uncertain, or ambiguous, or not made out by satisfactory proofs, a specific performance can not be decreed. “The reason,” says Judge STORY, “would seem obvious enough; for a court of equity ought not to act upon conjecture ; and one of the most important objects of the statute of frauds was, to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts.”—1 Story’s Eq. § 764. The principle has often been asserted in this court, that to entitle a complainant to a specific performance, the contract must be distinctly alleged, and established by clear and definite testimony. If the proofs fail to establish the contract as pleaded, a specific performance can not be decreed.— Goodwyn v. Lyon, 4 Port. 297; Ellis v. Burden, 1 Ala. 458; Aday v. Echols, 18 Ala. 353.

The averment of the bill is that the purchase of the lands was made by the complainant and Nuckolls his father-in-law jointly, and was intended as a joint purchase for the benefit of the complainant and his wife, who were to be equally inter - *594ested in said lands. What consideration there was to support the promise of Nuckolls, to whom the lands were to be conveyed, that the purchase should enure to the equal interest of the complainant and his wife, is not averred. Nor does it appear from the evidence that the purchase was joint as averred, or that there was any consideration for the promise of Nuckolls, if any was made. True, the complainant gave his note to Berry from whom Nuckolls purchased, for one thousand dollars, in addition to the purchase-money paid by Nuckolls. This was voluntary on his part, without the request or approbation of Nuckolls, to induce Berry to sell at the price Nuckolls was willing to pay. It was not part of the purchase-money of the lands, and if it had been paid by the complainant, there would be no ground on which he could claim an interest in the lands, or an equity to charge them. But it has not been paid, and so far as he is concerned the note has been paid by the appellee, Emma O., by taking it up, and substituting for it her own note with surety. There was no ground on which the complainant was entitled to a decree declaring that he had an interest in the lands.

It is contended that though the complainant may not have been entitled to a specific performance, he was entitled to a decree for compensation for improvements made upon the lands. Courts of equity will decree compensation for improvements made by a purchaser taking possession under an oral contract which the vendor refuses to perform.—Parkhouse v. Van Cortlandt, 1 Johns. Ch. 131. In Evans v. Battle, 19 Ala. 398, it was held, that when a voluntary donee, has taken possession of lands under a parol gift, and made valuable improvements, a court of equity will not permit the vendor to reclaim possession without making compensation to the donee. In either case, the contract or gift must be averred or proved. Neither the pleadings nor proofs show a contract or a gift.

Let the decree be affirmed.