66 So. 621 | Ala. | 1914
The principle of law is well recognized that where the purchaser pays to the seller a part of the purchase price of real estate, on a contract by which the seller is not bound to convey to the purchaser, such purchaser may recover the money so paid in an appropriate action.—Nelson v. Shelby Manufacturing & Improvement Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116.
Said count also alleges that the instrument is void as a contract for the sale of said land, in that it fails to state the location of said lots, as is required by the statute of frauds; that said instrument fails to state the state or county in which said lots are located; that plaintiff has never had control or possession of said lots.
The facts alleged in said count, together with the provisions of the contract, do not show a case wherein the plaintiff is entitled to recover on the principle above announced, and the demurrers to this count should, have-been sustained. In the case of Nelson v. Shelby, etc., Co., supra, relied upon by the. plaintiff below, the contract was as follows: “Received of Prank Nelson,
The court, in passing upon this instrument, says: “We may concede the memorcmdu-m to be complete in nil respects except as to the terms of the payment. I't says one-third cash, and ‘notes to be executed for the balance.’ Whether these notes are. to bear interest, and, if so, the rate of interest, or to be payable in oné, two, or ten years, or whether there are to be two or a half dozen notes, is not stated.”
The court does not at all hold that the description is void, or that it is one which may not be made certain by parol proof. In fact, the rule is well established in all such cases that parol proof is admissible for the purpose of showing the facts and circumstances surrounding the parties, at the time of the execution of the contract, in order to explain the meaning of the words used in designating the property, when called by .any name of identification, to show that the seller owned property in a certain county in the state of Alabama that would fit the description given, and his possession of same, "and that he did not oavu property .anyAvhere else that would fit the description, and that if, upon a consideration of all such evidence, the description given in the instrument, in the light of such facts and circumstances reasonably located the prop•erty, it Avas not void for uncertainty. This principle of laAV has been established by the following and other authorities in Alabama: Chambers v. Ringstaff, 69 Ala. 140; O’Neal v. Seixas, 85 Ala. 80, 4 South. 745; Homan v. Stewart, 103 Ala. 644, 16 South. 35; Webb v. Elyton Land Co., 105 Ala. 741, 18 South. 178; Cottingham v. Hill, 119 Ala. 353, 24 South. 552, 72 Am.
It appears from this record, and from briefs of counsel for the parties, that this cause was tried upon the assumption that the above-quoted contract was upon its face void for uncertainty in the description of the property, and that this formed the basis for the entire insistence of the plaintiff for a recovery. What we have here said shows that we are of the opinion that the contract is not void on its face for uncertainty in description of the property, and we think the authorities herein cited clearly support this view. As this is considered and treated by counsel ate the pivotal point in the case, that which constitutes the very foundation npon which rests the cause of action, and as this question is here determined contrary to the contention of appellee, the plaintiff in the court below, we have deemed it unnecessary to consider any of the other assignments of error.
Let the judgment of the court below be reversed, and the caiise remanded.
Reversed and remanded.