Maloy v. Boyett
53 Fla. 956
Fla.
1907
Check Treatment
.Parkhill, J.

(after statmg the facts) : Thе first assignment of error is, that the court erred in overruling the demurrer to the amended bill of complaint.

The demurrer was filed to the original bill of complaint, and it was afterwards made to apply to the amended bill. The amended bill cured nearly all the defects pointed out in the original bill.

It is contended that the court erred in overruling the demurrer because, in the amended bill of complaint the allegation of the consideration for the contract is vague, indefinite and uncertain, and shows that the complainant had paid the entire consideration in the said contract long before the contract existed.

In suits for specific performance of parol contracts for the sale of land, the rules of equity pleading require that the terms of the contract must be distinctly, definitely ;and precisely stated in the bill, so that the court may not be left tO' inference as to its terms or as to the rights of the parties, and so that the court can see that the contract is one which it is equitable to enforce. The contract must not appear from the bill to be vague, uncertain •or ambiguous. Vagueness of statement or indefiniteness as to the matter of substаnce is not permitted. Facts must be clearly stated. 20 Ency. of Pl. & Pr., 440; Iron Age Pub. Co. v. Western Union Tel. Co., 83 Ala. 498, 3 South. Rep. 449; Allen v. Young, 88 Ala. 338, 6 South. Rep. 747.

' So, also, the rule requires that when a purchaser comes into equity to compel the execution of a parol contract for the sale of land, and seеks ‍‌​​​​‌‌‌​‌‌​​​‌​‌‌​​‌​‌​​​​​​​‌​​‌‌‌‌‌‌‌​​​‌​‌​‌‍to take it from the operation .of the statute of frauds by averment of part performance, it is essential to relief that the acts of part *963performance relied upon are referable to that particulаr contract. 1 Story’s Eq. Jnr. section 764; Tate v. Jones, 16 Fla. 216; Cooper v. Colson, 66 N. J. Eq. 328, 58 Atl. Rep. 337; 1 Am. & Eng. Annotated Cases, 997.

We think the allegation in the bill of the consideration for the contract sought to be enforced is vague, uncertain, and ambiguous, and does not come up to the requirement of the strict rule which prevails in this regard. The consideration is stated vaguely as “being moneys that your complainant had heretofore advanced in payment of the said lands,” without stating how much money, and “that under the said agreement the said J. L. Mаloy in consideration of the said amounts hereinbefore set forth,” when no amounts of money had been stated, and these “amounts” would seem to refer to and include a mule and cart. It is true that in the third paragraph of the bill it is stated “thаt the full consideration of the lands was a'sum of f250.00,” but the word “consideration” as there used might reasonably be considered as a, statement of the full value of the lands. But even if this statement of consideration may be taken as applying to the allegation of consideration in the second paragraph, and as meaning the moneys advanced and the mule and cart in the possession of Maloy, the court is left to infer this meaning, which is a violation of the rule of pleading above set forth. Even if we could pass this by, yet there seems to us to be a fatal objection to the case of the complainant as set out in the bill. The complainant in this case comes into equity as a purchaser to compel the execution of a parol contract for the sale of lands and seeks to take this contract from the operation of the statute of frauds by averment of part performance оf the con*964tract, and, as we have seen, the acts of part performance relied upon must be referable to the particular contract sought to be enforced. The bill states that the contract sought to be enforced was made and entered into on the 3rd day of December; 1901. The acts of part performance relied upon in this case to take this contract out of the statute of frauds are the payment of the purchаse money and the entry into possession of the lands under and by virtue of the contract. Payment of the purchase money, followed by delivery of possession, under a parol agreement for the sale of lands, constitutes such рart performance that the seller is estopped from insisting that the agreement was not signed, and the specific execution may be decreed, but it is essential to this right for specific performance that the acts of part performance relied upon, the payment of the purchase money and delivery of possession of the land, be' consistent only with and legitimately referable to the particular agreement for. the purchase and sale. Tate v. Jones, supra; Halsell v. Renfrow, 14 Okla. 674, 78 Pac. Rep. 118; 2 Am. & Eng. Annotated Cases, 286.

In other words, acts done prior to a verbal contract to convey land are never a part performance upon which to base specific performance of the agreement. Price v. Lloyd (Utah), 86 Pac. Rep. 767.

A bill in equity will not lie. tо enforce specific performance of a. voluntary, promise; ‍‌​​​​‌‌‌​‌‌​​​‌​‌‌​​‌​‌​​​​​​​‌​​‌‌‌‌‌‌‌​​​‌​‌​‌‍to convey land, but a valuable consideration is necessary. Brevator v. Creech, 186 Mo. 558, 85 S. W. Rep. 527; Price v. Lloyd (Utah), 86 Pac. Rep. 767. The «bill in the instant case alleged the making of the contract between the parties on the 3rd day of December, 1901, and “the consideration of said *965contract being for moneys that your complainant had heretofore advanced” to the said defendant. It may be said that the meaning of this аllegation is that the moneys were advanced heretofore, that is, before the filing of the bill and after the making of the contract on the 3rd day of December, 1901; but this contention is upset by the further allegation of the bill “that under the' said agreemeent the said J. L. Maloy in consideration of the. said amounts hereinbefore set forth agreed to make, execute and deliver a deed to your orator,” all of which shows that the amounts were paid theretofore•, that is before the making of the agreement of December 3rd, 1901, in which it was agreed, in consideration of the said amounts, the said Maloy agreed to make the deed. It is true that the bill alleges that the moneys were advanced “in payment of the said lands,” which would imply that there was some other agreement for the purchase of the lands, and we are led again to conjecture and infer the terms of the contract. Here the allegations of the terms of the contract are so vague, indefinite and uncertain that the court is unable to see that the contract is one which it is equitable to enforce. As to that part of the consideration consisting of “one bay horse mule and one log cart then” (at the time the contract was made, December 3rd, 1901,) “in the possession of the said J. L. Maloy,” it is clear that this property must have been in the possession of Maloy before the making of the contract. So far as the'-e moneys and this property are to be taken into account, they are mere matters wholly in the past, and there is no' allegation that the consideration for them; was a promise by J. L. Maloy to convey the lands in suit, and are insuf-' ficient to sustain a suit for specific performance.’ ’Ye *966adopt in this connection the language Of the court ‍‌​​​​‌‌‌​‌‌​​​‌​‌‌​​‌​‌​​​​​​​‌​​‌‌‌‌‌‌‌​​​‌​‌​‌‍of Utah in the case of Price v. Lloyd, supra: “Courts of equity, in establishing the doctrine invoked by plaintiff, have not.by any means intended to annul the statute of frauds, but only to prevent its being made the means оf perpetrating a fraud. In order that a plaintiff may be permitted to give evidence of a contract not in writing, and which is in the very teeth of the statute and a nullity at law, it is essential that he establish, by clear and positive proof, acts and things done in pursuance and on account thereof, exclusively referable thereto, and which take it out of the operation of the statute.” For the rea-' sons above given the demurrer ought to have been sustained.

Another objection to the amended bill made l>ere through the demurrer is, that “the bill of complain t does not allege the contract is in writing and it will therefore be presumed to be in parol.” If this objection is to be considered an effort on the part of the defendant to avаil himself of the benefit of the statute of frauds by demurrer to the bill he cannot succeed. The bill sets out the contract in general term's and the presumption of law is that it is a legal and valid contract, and is in writing and signed by the party to be chаrged therewith, and if the defendant desires to set up the statute as a defense,.it must be done by a plea, or insisted on in the answer. Where the complainant in a bill sets up in terms a verbal contract, the defendant may demur. But this is not the cаse here. Chambers v. Lecompte, 9 Mo. 575; Sanborn v. Rodgers, 33 Fed. Rep. 851; Woods’ Statute of Frauds, section 538. It may be well to say here that the vague, indefinite and uncertain allegations of the bill in the *967respects pointed out have given rise tо much confusion in the proofs. It does not seem to be clear to all of us from the proofs whether the complainant is seeking to enforce a contract for the purchase of the land made with the older Maloy fоur or five years before the filing of the bill, or the contract made with J. L. Maloy, December 3rd, 1901, on his own account, or to carry out the one made with his father. It will be well to remember that as a basis of the remedy of specific pеrformance there must be a valid and binding contract, and the contract must be established by competent and satisfactory proof,, which must be clear, definite and certain. As was said in the case of Allen v. Young, 88 Ala. 338, 6 South Rep. 747, “In suits for the sрecific performance of parol contracts respecting the sale of lands, the rules of equity pleading require that the contract shall be distinctly, definitely and precisely averred so that the court may not be left to inference, or in uncertainty as to its terms, or as to the rights of the parties. In nO' other class of cases is correspondence between the allegations of the bill and the proof adduced to establish them more rigidly ‍‌​​​​‌‌‌​‌‌​​​‌​‌‌​​‌​‌​​​​​​​‌​​‌‌‌‌‌‌‌​​​‌​‌​‌‍exacted. It is not sufficient that some agreement be proved. If the evidence fails to satisfactorily establish the particular agreement alleged in the bill, or leaves any of its material terms in doubt or uncertainty, equity will not lend its aid to enforce its specific performance. The complainant’s case must be clearly made out, in harmonious pleading and proof, to entitle him to a decree.” See, also, Anthony v. Leftwich, 3 Randolph (Va.) 238, text 246.

As was said by this сourt, in case of St. Andrew Bay Land Company v. Campbell, 5 Fla. 560: “No facts are in issue unless charged in the bill, and no proofs can gen*968erally be offered of facts not in the hill, nor can relief be granted for 'matters not charged, although they may be apparent from other parts of the pleadings and evidence; for the court pronounces its decisions ‘sewmcktzri allegata et probata.’”

It is a well established principle of law that the specific performance of a contract fоr the sale of lands is not a matter of right in either party, but a matter of sound, reasonable discretion in the court. Asia v. Hiser, 38 Fla. 71, 20 South Rep. 796; Knox v. Spratt, 23 Fla. 64 6 South Rep. 924; McCrillis v. Copp, 31 Fla. 100, 12 South Rep. 643. Or, as Lord Eldon observed, 12 Ves. Jr. 331, ‘‘The jurisdiction is not compulsory, but the subject ‍‌​​​​‌‌‌​‌‌​​​‌​‌‌​​‌​‌​​​​​​​‌​​‌‌‌‌‌‌‌​​​‌​‌​‌‍for discretion. The question is not what the court must do, but what it may do, under the circumstances.”

The decree of the court will be reversed at the cost of appellees, and the cause remanded with directions to allow the complainants to amend the bill aсcording to the suggestions'herein, and for such other and further proceedings, not inconsistent with this opinion, and according to the usual course of proceedings in equity.

Taylor and Hocker, JJ., concur; Shackleford, C. J., and Cockrell, and Whitfield, JJ., concur in the opinion. •>