Holloway v. Smith

73 So. 417 | Ala. | 1916

McCLELLAN, J.

If we accept this bill’s averments as justifying the theory upon which complainant (appellee) would rest her claim for favorable consideration in a court of equity — an acceptance that is not justified by the allegations of fact made— this is the substance of the cause of complaint and the basis for the rescission sought: The grantor conveyed a lot to the grantee-upon consideration of a parol promise by the grantee that he would construct upon the land a dwelling for himself, the grantee failed or refused to make the improvement, and the grantor would have the contract (including, of course, the conveyance) rescinded. Among other objections not now necessary to be-noted, the demurrer pointed this one: “That the bill seeks to-enforce an illegal parol agreement which is void under the statute of frauds.” This ground of demurrer was well taken, according-to the. apt authority of Patton v. Beecher, 62 Ala. 579, Brock v. Brock, 90 Ala. 86, 8 South. 11, 9 L. R. A. 287, and Tillman v. Kifer, 166 Ala. 403, 405, 52 South. 309, among others. The failure or refusal to perform a parol promise is not a fraud efficient to relieve the transaction of the effect of the statute of frauds.— Authorities supra. There is no averment of fraud in the bill.

The demurrer was erroneously overruled. The decree is-reversed, and the cause is remanded.

Reversed and remanded.

Anderson, C. J., and Gardner and Thomas, JJ., concur.