Poe v. Kemp

Feb 3, 1921
6 Div. 79.
Reporters:
, ,
Before:
Miller
MILLER, J.

This is a bill for specific performance of an oral contract between *229 complainant and defendant. The defendant demurs to the bill as last amended.

The complainant is to live with, look after, and care for defendant, who is ‍‌‌‌‌‌​‌​​​​​‌​​​‌‌‌​​​​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​‌​​‌‌​‌‌‌‌​‌​​‌​‌​‌​‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​‌​‌‌​​​​‍old and feeble, during her life. Defendant is to give her house and lot described in the eoml>laint. Complainant is put in possession of the house, defendant makes will devising it to complainant and delivers the will to comlilainant, and calls it a deed. The defendant has made a new will, and devised this house and lot to another.

Complainant avers that defendant has breached this contract, and she is ready, willing, and ‍‌‌‌‌‌​‌​​​​​‌​​​‌‌‌​​​​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​‌​​‌‌​‌‌‌‌​‌​​‌​‌​‌​‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​‌​‌‌​​​​‍able to perform her part thereof. The complainant gives the contract in detail — fuller than the above statement of it.

[1] This contract, as alleged in the complaint, is continuous in its nature. It cannot be completed until the death of the defendant. It requires and calls for continued and successive acts by complainant and defendant of a mutual nature during defendant’s life. The character and nature of these acts are such that ‍‌‌‌‌‌​‌​​​​​‌​​​‌‌‌​​​​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​‌​​‌‌​‌‌‌‌​‌​​‌​‌​‌​‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​‌​‌‌​​​​‍they cannot be enforced by a decree of the court. The contract is not complete. It is mutually ex-ecutory. It involves personal acts of each party. It will not end during the life of defendant. Equity would be in the bill of complaint if complainant had performed her part in full and defendant was dead and enforcement of the contract was asked against her representative. Bolman v. Overall. 80 Ala. 451, 2 South. 624.

[2] If ‍‌‌‌‌‌​‌​​​​​‌​​​‌‌‌​​​​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​‌​​‌‌​‌‌‌‌​‌​​‌​‌​‌​‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​‌​‌‌​​​​‍the contract was made as alleged, and if it has been breached by the defendant, the remedy, during the life of defendant, is not in a court of equity for specific performance, but in a court of law for damages lor its breach. Chadwick v. Chadwick, 121 Ala. 580, 25 South. 631; Black Diamond Coal Co. v. Jones Coal Co., 200 Ala. 276, 76 South. 42; Tombigbee, etc., R. Co. v. Lumber Co., 155 Ala. 575, 47 South. ‍‌‌‌‌‌​‌​​​​​‌​​​‌‌‌​​​​‌​​​‌‌‌​​​‌‌‌‌​​‌​​​​​​‌​​‌‌​‌‌‌‌​‌​​‌​‌​‌​‌‌‌​‌‌‌​​​​​‌‌​‌‌​​‌‌​‌​‌‌​​​​‍88; Stewart v. White, 189 Ala. 194, 66 South. 623; Gardner v. Knight, 124 Ala. 278, 27 South. 298.

The court below sustained demurrers of defendant to the bill of complaint as amended.

Affirmed.

ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.