47 So. 142 | Ala. | 1908
Lead Opinion
— The averments of the bill sIioav that the complainant has paid a portion of the purchase money in pursuance to the terms of sale made Avith the agent of respondent Gainer, and was put into possesion of the land by the agent under his contract of purchase, and
The case made is clearly within the exception provided by subdivision 5 of the statute of frauds (section 4289, Code 1907), unless the agent’s authority to put complainant in possession Avas required to be in Avriting, The plain purpose of the exception Avas to make valid all verbal contracts for the sale of lands, or of any interest therein, where the purchaser pays the purchase money, or a portion thereof, and is put in possession by the seller. In short, where the purchase money or a portion of it is paid, and the purchaser is put in possession by the seller, no writing evincing the contract of sale is necessary to the validity of the contract. The factum of a contract of sale, the payment of the purchase money, and the putting of the purchaser in possession may be shown by testimony independent of any writing. If these matters may rest in parol, there is no good reason for holding that the principal may not orally delegate the authority to his agent to put the purchaser in possession, or may not orally ratify such act if done without authority. There is nothing in the language of this subdivision of the statute, or in its policy, which requires such, a delegation of authority to be in Avriting, or which prevents the application of that familiar maxim of the laAV, “Qui facit per alium facit per se.”
There is also another consideration why the bill should not have been dismissed. The rule is well established in this jurisdiction that a bill, brought by a purchaser, to compel specific performance of a particular contract of sale, may be retained, notAvithstanding the
The chancellor seems to have dismissed the bill upon the ground of laches; and the correctness of this holding is asserted and attempted to be sustained by appellees’ counsel. A number of cases decided by this court are cited and relied on as supporting the ruling and the contention made. An examination of these will readily disclose that they are not applicable to this case. In no one of them had the complainant been put into possession under his contract of purchase, remaining continuously therein under the contract. It is this fact, together with the further fact that complainant has never been put in default, that differentiates this case from those cited by appellees’ counsel. The principle here controlling, in the language of Mr. Pomeroy, is this: “In determining what amount of mere delay in briging this suit will defeat the plaintiff’s claim to specific performance, or, in other words, what lapse of time, after its right of action accrued, will render the demand stale, the rule prevails in equity, as in law, that while the
The decree dismissing the bill was erroneous, and must be reversed. A decree will be here rendered, overruling the motion to dismiss the bill.
Reversed and rendered.
Dissenting Opinion
(dissenting). The bill shows that Wm. H. Gainer, on the 13th of March, 1888, was the owner of the lands described in the bill, and that he and his brother, James, were partners in the timber and mill business, as W. H. Gainer & Co., and that, according to complainant’s best information and belief (the averment not being made that it was a fact), Joe Beall and Mary Ellis jvere also partners in said firm; that on the
It is further alleged that on or about the 13th of March, 1888, said Beall, “in his capacity of general manager for said firm,” of the lands described, and “representing said partnership, agreed, promised, and contracted with complainant, to sell and convey to him said lands,” on the terms set out in the fourth paragraph of the bill; and the averment is made that ‘“said contract with reference to the sale of said lands, as herein set out, was not in writing, but was made verbally.”
Complainant avers that, not knowing that Beall was authorized to make said contract, he, complainant, informed W. H. Gainer of the trade, and he said it Avas all right; that said Beall, acting as general manager for said W. H. Gainer & Co., and by and Avith their knowlege and consent, placed complainant in the possession of said lands, in April, 1888, and since that time, and up‘to the filing of this bill, on the 13th of February, 1906, he has continually resided upon said lands and held the actual and notorious possession of them under claim of ownership.
The bill further avers that in the year 1889, or 1890, the said W. H. Gainer, Avithout complainant’s fault, discharged complainant from the service of Gainer & Bro., “and declined, failed and refused to make Avith complainant any settlement” either Avith the firm of Gainer & Co., or Avith the neAV firm of Gainer & Bro.
It is further shown that, in 1888, W. M. Gainer and James Gainer mortgaged said land to one Henry Baars, which mortgage was foreclosed by Baars in chancery, and the lands were purchased by The Pensacola Land Company, and they were sold by them, and successive
The bill fails to aver that said W. H. Gainer placed complainant in possession, or has ever recognized complainant’s right or title to the land, or that complainant has paid him the purchase money therefor; or that said Beall, as his agent, or the agent of any firm of Avhich he Avas a member, had any Avritten authority to sell or dispose of said lands to complainant.
It is shown that on the 26th of December, 1903, the Berry Lumber Company, one of the defendants, brought ■suit in the Geneva, circuit court against complainant, to recover said lands, which suit is still pending.
The prayer of the bill was for a perpetual injunction against W. H. Gainer, and the other defendants, from' bringing or prosecuting any suit for the recovery of said lands, and that complainant’s contract for the purchase of the same, be specifically enforced.
A motion Avas made to dismiss the bill for want of equity, which motion the chancellor granted, and dismissed the bill. The appeal is to reverse that decree.
The contention of the defendant is that, without such written authority, any contract made by Beall to sell or dispose of said lands was void, as offensive to the statute of frauds; that, eAren if he had been armed Avith such Avritten authority, the bill having been filed more than 10 years after said contract was made, the cause of action, if it ever existed, is barred by the statute of limitations of 10 years, and that the bill was, also, properly dismissed for want of equity on account of the laches of complainant, for the reason that 18 years, or more, have elapsed since the contract was entered into, and the filing of the bill.
The case of Elliott v. Bankston, Post, 45 South. 173, seems to sustain the position of defendants as to the statute of frauds. Section 2152 of the Code of 1896 provides that every agreement is void, for the sale of property, unless the same is in writing and subscribed by the party to be charged therewith, or by some other person thereunto lawfully authorized in writing; and subdivision 5 of that section ingrafts an exception in favor of leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.
In the case referred to, it was said: “The letter of the exception requires that the seller put the purchaser in possession of the land. No provision is made for the performance of this duty by another. * * * Assuming that the duty may be committed to an agent, we think there is no other construction possible or wise, than that the agent must hold the written authority of the seller, if his act of putting the purchaser in possession is to invoke the benefit of the exception. If no written authority to the agent were requisite, the essential act by which the condemnation of the statute is avoided would rest in parol; a condition against which the statute is primarily directed, and to forbid which is the idea for its existence.”
It is not denied that Beall had no written authority to make the sale to complainant, nor is it shown that any of the purchase money was paid to W. H. Gainer.
Perhaps nothing more need be said to sustain the decree of the chancellor.
The great delay of complainant to assert his rights by appropriate action — some 18 years — places the ban of laches upon him, from which his averment of possession does not relieve him. He knew, all the while, he had nothing but an oral contract entered into by an agent; that Gainer did not during all that time recognize his right; that he had assumed to mortgage the property, and that in 1888, or 1890, as the bill avers, he discharged complainant from the service of Gainer & Bro., and declined and refused to make with complainant any settlement with the firm of Gainer & Company or with Gainer & Bro. — Davis v. Williams, 121 Ala. 547, 25 South. 704; Ashurst v. Peck, 101 Ala. 508, 14 South. 541; Haggerty v. Elyton Land Co., 89 Ala. 428, 7 South. 651; Gentry v. Rogers, 40 Ala. 442; Cole v. Birmingham U. R. Co., 143 Ala. 427, 39 South. 403; Scruggs v. Decatur, etc., Co., 86 Ala. 173, 5 South. 440.
It is unnecessary to consider the statute of limitations of 10 years, though, possibly, that is also applicable.