89 Ala. 572 | Ala. | 1889
It is very fully shown — in fact, is not controverted — that A. St. Olair Tennille and O. J. Knox have succeeded to all the equitable rights which J. B. Jones could assert against Mrs. M. A. McLure, affecting the hundred acres of land in controversy. This case is thus narrowed to a single inquiry: Have the complainants shown a contract on the part of Mrs. McLure, binding her to convey the lands to Jones, with that measure of precision and proof which the law exacts in such cases ? — 3 Brick. Dig. 361. The contract which is sought to have specifically performed,' is an alleged agreement for exchange of lands. We feel safe in asserting that the bill and amended bill set forth the terms of the contract with sufficient particularity; that the proof offered by complainants tends to prove every substantial averment relied on for relief, and that there is no material variance between their testimony and the averments made.
The defense takes two forms: First, that there was in fact no agreement of exchange made by and with Mrs. McLure, except on condition that Jones should pay $100 difference in the value of the two tracts, and it is neither averred nor proved that the $100 has been paid, nor does the bill tender payment. Gpon the question of Jones’ promise to pay $100, the alleged difference in values, the testimony is in direct conflict. The chancellor decreed in favor of complainants, and therefore must have resolved this conflict in their favor. . Matters of proof, to some extent collateral to this issue of fact, shed some light on this inquiry, which will be more appropriately considered under the second ground of defense.
The agreement of exchange was oral, and is so set forth in the bill. It was first made with Mr. McLure, husband of respondent, while she was a feme covert. It is averred and
The defendant’s contention is, that she never agreed to make the exchange except on the receipt of $100, difference in values; that Jones never paid the difference, or any part of it, and that falling in debt to her on other account, in a sum equal to the value of the land, he conveyed it to her in payment of that debt. And she denies that the conveyance was made to her in pursuance, or recognition, of the oral agreement of exchange. The testimony given for her tends to prove this version to be true.
Among other defenses, the defendant pleaded the statute of frauds — that the alleged agreement of exchange was not in writing signed by the party sought to be charged. Taking the facts set up in the bill, and testified by complainants’ witnesses, to be a true presentation of the transaction as it occurred, the execution of one deed was the consideration —the whole consideration- — for the execution of the other. Our statute of frauds — -Code of 1886, § 1732 — which requires contracts for the sale of lands to be in writing signed, expressly excepts from its operation cases in which the purchase-money, or a portion of it is paid, and the purchaser put in possession by the seller. The proof in this case shows that Jones, the purchaser, took possession as of right, soon after the agreement was made with Mr. McLure, and that ever afterwards he remained in possession, paying the taxes, and enjoying the rents and profits; and this with knowledge of Mrs. McLure, and without objection from her. This, if true, takes this contract out of the influence of the statute of frauds.—Derrick v. Brown, 66 Ala. 162; Heflin v. Milton, 69 Ala. 354; Singer Man. Co. v. Sayre, 75 Ala, 270; Shakespeare v. Alba, 76 Ala. 351.
Affirmed.
