76 Ala. 157 | Ala. | 1884
— -This is a statutory real action, brought by the appellee, Parmer. In such action, only legal titles can be looked to. No matter how complete an equity may be shown, it will neither maintain the action, nor defeat it, against a claimant under a legal title. Only a court of chancery can recognize and enforce equitable claims to lands.- — Yon v. Flinn, 31 Ala. 409 ; Tutwiler v. Munford, 73 Ala. 308; Slaughter v. McBride, 69 Ala. 510.
The defendant derived all the claim he asserts from the plaintiff. He went into possession under an alleged contract of letting, which he claims secures to him a lease-hold term of five years duration, commencing on January 1st, 1881. The writings and all the testimony show this to have been the relation of the parties. This is conclusive of plaintiff’s right to recover, unless defendant can show a paramount legal title which dominates it. — Bishop v. Salouette, 67 Ala. 197; Houston v. Farris, 71 Ala. 570; Otis v. McMillan, 70 Ala. 46.
The inquiry in this case is, whether there was a lease, or only an executory agreement for a lease. If the former, then plaintiff has no right to recover in this action. If the latter, then defendant can not defend this suit, but will be left to his action for damages, or to a bill for specific performance, if he complies with the terms of the contract on his part. Parmer can not invoke the statute of frauds, as a defense to any attempt to charge him, no matter whether the writing be treated as an executed lease, or merely as an executory agreement. He admits the paper was signed by him, and it has one attesting witness. — Code of 1876, § 2115 ; Heflin v. Milton, 69 Ala. 354 ; Phillips v. Adams, 70 Ala. 373 ; Cooper v. Hornsby, 71 Ala. 62 ; Browne Stat. Frauds, § 397.
The parties to this suit had three interviews in reference to the alleged lease. At the first two of those interviews, the witness King was alone present. At the first meeting, in August, 1883, an agreement was drawn up, signed by both parties, and witnessed by King. This agreement described the premises to be let, the commencement and duration of the leasehold term, and the annual rent to be paid. It was not an executed lease at that time, for it contains the clause, “Notes and papers to be drawn up as soon as convenient.” This paper was left with Parmer until the second interview, and during that time the contracting parties took no action under the agreement. The second interview was late in September, or early in October. At that time a paper was drawn up, specifying particularly the duties and obligations to be incurred by Harrison, the
If this transaction had closed with the acts done at the second meeting, there can be no question it would have been an executed lease, — not a mere agreement to give a lease. The instrument signed by both parties, and then delivered to defendant, was so executed by Parmer, the party sought to be charged in this suit, as to be binding on him under the statute of frauds. Code, § 2145 ; Bro. Stat. Frauds, § 397. That instrument described the premises and the parties, and specified the rent reserved, and the commencement and duration of the lease. The second paper, and the notes executed by Harrison at the second interview, would fill the requirement in the original agreement, “Notes and papers to be drawn up as soon as convenient.” The original agreement being delivered to Harrison, in the presence of Parmer, and without his dissent, these writings evidenced every element of an executed contract of lease. If, as Parmer contends, certain stipulations and reservations were omitted from the writing, he must be held to have waived
What occurred, however, at the second interview, shows that the parties did not then consider the transaction closed. They were to have a third meeting. The expressed purpose of that third meeting was, that a duplicate, or counterpart of the paper executed by Harrison alone, was to be prepared and given to him ; and when so prepared and delivered, Harrison was to surrender the original joint agreement. Now, this agreed duplicate, or counterpart — the original agreement being surrendered up — would be incomplete and worthless, without the attested signature of Parmer, the plaintiff. Neither the parties, nor King, the draughtsman, considered the writings complete ; and hence we must hold there was not a compliance with the stipulation in the original agreement, that the notes and papers were to be drawn up as soon as convenient. We feel constrained to hold there was only an agreement for a lease, which can only become a legal holding, by a lease executed, or a bill for a specific performance. — Taylor, Landlord & Tenant, §40 ; Doe v. Ashburner, 5 T. R. 163 ; Goodtitle v. Way, 1 T. R. 735 ; Doe v. Clare, 2 T. R. 739 ; Doe v. Smith, 6 East, 530 ; Weld v. Traip, 14 Gray, 330.
Some testimony given by plaintiff, of conversations preceding the first writing, may have been illegal. It could not, however, vary the result of the trial. Hnder no circumstances, according to the rules above declared, can the defendant resist a recovery in this suit.
Affirmed.