34 So. 2d 596 | Ala. | 1948
On a former appeal the equity of the bill as last amended and the sufficiency of the agreement to comply with the statute of frauds was sustained, and the rule as to the admissibility of the evidence to make certain the general description of the property in the receipt given by the defendant for the cash payment was fully stated. Dobson et al. v. Deason et al.,
The issues of fact as to what constituted the property "known as Millport Motor Company at Millport, Alabama," owned by the respondent at the time of the negotiations between the parties, was tried on documentary evidence and testimony given ore tenus going to show that the property referred to in the negotiations between the parties was the property purchased by the respondent J. H. Deason from R. V. Windham.
In a letter written by respondent Deason in reply to Dobson's inquiry about the property, Deason stated: "I do own the R. V. Windham property better known as Millport Motor Company, Millport, Alabama; I would sell this property for $7,500.00 cash." Dobson testified that upon receipt of this letter he called Deason on the telephone and told him he would accept his offer, and would send him a check "as a binder." He further testified that in said conversation Deason said the property included three buildings of the Millport Motor Co., and described them as a store building, the original garage, and a little concrete building behind the old Windham Store; that there was some vacant lots with it but he could not describe it. The evidence shows that the check was sent to Deason and accepted, and he gave the receipt set out in the report of the former appeal as a binder. The complainant offered other evidence in harmony with the foregoing.
Mr. Deason did not testify, but offered witnesses, residents of Millport for many years acquainted with the property, who testified what they understood and what was generally known that the "Millport Motor Company" property was the garage used as a storeroom for parts and the shop.
Weighing the evidence in the light of the rule stated in Dobson v. Deason, supra, and Olson et al. v. Nelson,
We are confronted by the complication that the respondent, Mrs. Deason, is not a party to the contract and, therefore, was not a proper party to the bill. Minge v. Green,
Where the inchoate right of dower is involved and the wife is not a party to the contract, the weight of authority is to the effect that, "Before the court will refuse to enforce performance of the contract the unwillingness of the wife must be pleaded and proved as a defense." 49 Amer.Jur. p. 123, § 104; Amer. Eng.Ann. Cases, Vol. 14, p. 671.
In such case, where the unwillingness of the wife to join in the conveyance is pleaded, the rule is stated as follows:
" 'The purchaser may have specific performance, with a deduction from the price of such sum as represents the present value of the wife's contingent interest, estimated by the usual rules and tables. By the practice in a number of states, instead of making an abatement of a lump sum from the purchase price, estimated as the present value of the wife's inchoate dower interest, the court gives an indemnity to the vendee against such interest. This is generally done by permitting him to retain one-third of the purchase price until the wife dies or releases her dower, and securing its ultimate payment to the vendor or his heirs by mortgage or lien on the land conveyed.' 36 Cyc. 744 (11) (111), and numerous cases cited. Whatever may be the rule in some of the other states, this court has long been committed to the rule as above quoted. Springle v. Shields,
In the instant case, as appears from the defendants' answer, they "stand ready, willing and able to execute and deliver the deed to complainant to the real property known as Millport Motor Co."
We are, therefore, of opinion that the decree is due to be affirmed and it is so ordered.
Affirmed.
GARDNER, C. J., and LIVINGSTON and SIMPSON, JJ., concur.
