47 So. 80 | Ala. | 1908
Tbe object of this suit is. to enforce tbe specific performance of a parol contract of sale of land and to enjoin an ejectment suit instituted by tbe respondent for tbe recovery of tbe land. Tbe original bill avers that tbe contract embraced 860 acres, more or less, giving definite description of tbe whole, and alleges that tbe contract was entered into between complainant and tbe respondent on tbe 15tb of September, 1894, and that on said day complainant paid to respondent tbe purchase price agreed on “for said right, title, and interest of said S. A. Jones, and said S. A. Jones delivery to oratrix possession of said above-described land, promising oratrix at tbe time to execute to her a deed conveying all of bis right, title, and interest in and to said land.” After respondent bad filed an answer specifically denying all tbe material allegations of tbe bill, and especially denying that any contract of sale was made, tbe bill was amended by eliminating a part of tbe lands, thereby reducing tbe number of acres alleged to have been embraced in tbe contract to 436, and specifically describing tbe same.It was also shown by tbe amendment that $100 was tbe purchase price agreed on and paid. On final bearing tbe chancellor rendered a decree denying tbe relief prayed, and dismissed tbe bill. Tbe appeal is from that decree.
Tbe only, question presented by tbe record for consideration here is one of fact. In cases of this kind, tbe rule is well established that, to make a case for relief, tbe terms of tbe contract must be definitely alleged, and established' as ¡alleged by clear and satisfactory proof. If tbe evidence fails to prove tbe contract, or if any of its terms are left in doubt or uncertainty, a specific performance will be refused. As expressed by Stone, J., in Daniel v. Collins & Co., 57 Ala. 625, 627:
*646 “In such suits, great accuracy of averment and strict corresponding proof -are required. Loose and inaccurate pleading, or variant or merely persuasive testimony, is alike fatal to the relief prayer. The complainant’s case must he clearly made out in harmonious pleading and proof, to entitle him to adccree.” — Goodwyn v. Lyon, 4 Port 297; Aday v. Echols, 18 Ala. 353, 52 Am. Dec. 255; Moon’s Adm'r v. Orowder, 72 Ala. 79; Carlisle v. Carlisle, 77 Ala. 339. The bill does not make clear the interest that the respondent owned in the lands; and, while it may be inferred from the evidence that he had an interest in them as an heir at laAv of G.- M. Jones, deceased, it is by no means made clear what that interest was, nor the extent of it.
Now, in respect to the testimony, we find it sharply conflicting, and that of the witnesses for the complainant, in some material respects, is inconsistent. The bill alleges that the contract was made on the 15th day of September, 1894, and yet Mrs. Jones (the complainant) testified that she bought the land and paid the respondent for it in 1893, that she paid him $100 in cash at the time she made the trade, and that he gave her possession; and at another place in her testimony we find she testified (without any pretense of explanation of her former evidenece) that she was in the actual possession of the land, and that she obtained possession from S. A. Jones in 1894. In another place her evidence shows she had been living on the premises for about eight years before the alleged contract of sale was made. Her son, G. M. Jones, who was a mere boy in 1894, testified that he was present and saw his mother pjay /respondent ¡$100 ¡for the land, and that that was in September, 1894. Mannie Jones, a daughter of the complainant, who was 13 years old in 1894, testified that she was present at the time the contract*647 was made, in September, 1894, and that her mother paid Jones $110 cash. On her cross-examination she testified that her mother paid Jones for the lands in 1893, and then she testified that her father paid Jones the money for the land in 1893. This witness further testified that she had never had a conversation with her father alone “about this lawsuit,” but that they.had all talked about it together. O. M. Jones, husband of the complainant, testified that complainant made the trade with S. A. Jones for the land at the price of $100, and that she paid him the cash on the day of the trade; that “S. A. Jones proposed to sell to F. E. Jones, and she accepted, paid him the money, and asked him for a deed, and he said to her that she did not need a deed, as she was in possession, but he would give her a deed at any time; that G-. M. Jones would have it made and brought to him.” This witness again testified that his wife made the trade and paid him the money afterwards. Then, on his cross-examination, he testified: “I paid S. A. Jones $100 for the land involved in this suit, for F. E. Jones.”
The respondent pointedly denies in his evidence that he sold Mrs. Jones the land or that he made any contract whatever with her. Simmons, a witness examined by the respondent, testified to a conversation with Mrs. Jones in which she disclaimed any interest in the land. If Simmons is interested in the respondent by reason of relationship, then by the same token it may be said that he is interested in the complainant. He is brother-in-law to each. There are other circumstances in the case which, we think, tend to corroborate the respondent’s testimony; and, without further elaboration, we are of the opinion that the complainant does not make a case by clear and satisfactory proof and in keeping with the
Affirmed.