67 Ala. 374 | Ala. | 1880
— Duplicity in a complaint, or in a plea, unless it be a plea in abatement, is not a ground of demurrer in this State. It could only be reached" by special demurrer at common law ; and as special demurrers are abolished by statute in this State, save, perhaps, as to dilatory pleadings, such irregularity in a complaint is harmless. — 2 Brick. Dig. 333, §§ 55, 56, et seq; Code of 1876, § 3005.
The testimony in this case tended to show that the Hiltons held a lease from Bell, commencing January 1st, 1874, to continue eleven years, on two half sections of land — E. § sec. 33, and W. J sec. 34. A suit was pending in favor of Chilton against Bell, for the half section in thirty-four. The Hiltons sold this lease-hold interest to Houston & Pinson, receiving in part payment four hundred and fifty dollars ; and the testimony tends to show that the transfer of the lease by Hiltons to Houston & Pinson was made in consideration of $450 paid in cash, and of the further sum of four hundred dollars the defendants promised to pay, whenever said Bell should obtain a title to the W. of said section 34, by the termination of the said suit of Chilton against Bell. The bill of exceptions states it does not set out all the evidence,-
A sale of lands, or of an interest in lands, even by oral contract, does not fall of its own weight.— Gillespie v. Battle, 15 Ala. 276. A vendee of land under a parol contract, who has given his note for the purchase-money, and been let into possession, cannot avoid its payment on the ground that the contract is void by the statute of frauds. — Rhodes v. Storr, 7 Ala. 346. If the purchaser takes and retains possession of the land, he cannot recover money paid under a verbal purchase. — Cope v. Williams, 4 Ala. 362; Donaldson v. Waters, 30 Ala. 175. Possession by the vendee, with the consent of the vendor, under a parol contract for the sale of land, under the old statute, took the case out of the statute of frauds. — Danforth v. Laney, 28 Ala. 274. Our statute of frauds — section 2121, Code, 1876 — requires, “ that in contracts for the sale of lands, or of any interest therein, except leases for a term not longer than one year, the agreement, or some note or memorandum thereof, must be in writing, expressing the consideration, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing ; unless the purchase-money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.” But even conceding that the Hiltons did not contract in writing, yet, if Houston & Pinson took possession under the agreement, and the Hiltons are able and willing to protect them in the quiet enjoyment of the term, payment of the purchase-money cannot be successfully resisted. — Alderson v. Harris, 12 Ala. 580; Lumpkin v. Reese, 7 Ala. 173.
The pith and substance of the agreement made between the Hiltons and Houston & Pinson, was, that the latter should not be molested in the enjoyment of the leasehold estate during the continuance of the lease. That result obtained, it was a matter of no moment to them whether Bell recovered the land by the verdict of the jury in his favor, and judgment thereon, or, by paying to the clerk of the court for the use of the plaintiff, the value of the lands and tenements as assessed by the jury, on the default of the plaintiff to pay the excess of value of the permanent improvements
In tbe two affirmative ekarges given to the jury, tbe Circuit Court conformed to tbe rules above declared, and did not err. Tbe two charges asked, binge tbe plaintiffs’ right to recover any thing in this action on tbe question, whether defendants unconditionally admitted an indebtedness to plaintiffs. Tbe record, in effect, informs us it does not contain all tbe evidence. Indeed, there is testimony tending to show plaintiffs’ light to recover, independent of any ’admission defendants may have made. But if this were not so, it would be our duty, in favor of the correct ruling of tbe Circuit Court, to presume there was evidence of tbe liability of tbe defendants, other than that which rested on their admissions. Error cannot be presumed, but must be shown. — 1 Brick. Dig. 340, §§ 71, 74; Williams v. Barksdale, 58 Ala. 288.
Affirmed.