57 Ala. 440 | Ala. | 1876
We think the testimony in this cause, if we are permitted to consider it, fully proves that the sale of lands by Shepherd to Helms was one entire contract of sale of the four hundred acres for the aggregate sum of $2,800, and not two separate sales or contracts. And if we are correct in this, then it will follow that the note in suit is part purchase price of the entire tract, and not the entire purchase-money of the 160 acres. We deem it unnecessary to collate ■ or consider the testimony in detail. We think it leaves no reasonable ground to doubt the individuality of the contract, .so far as the acts and intentions of the parties disclose the .same.—Pierce v. Wilson, 34 Ala. 596.
It is contended, however, that we can not consider this testimony, because its tendency and effect, if allowed, are to vary the terms of the written contract. Gaines v. Shelton, 47 Ala. 413, is relied on in support of this proposition. We have carefully examined the case referred to, and think it is not reconcilable with the principles uniformly, before that time, adhered to in this State.—See Self v. Hennington, 11 Ala. 489 ; Corbin v. Sistrunk, 19 Ala. 203; Thomas v. Barker, 37 Ala. 392; Cowan v. Cooper, 41 Ala. 187. The parol evidence in this case did not add to, or vary any term of the written contract. There was no writing which expressed what was the consideration of the note sought to be enforced. The whole purpose was to show what was, in fact, the consideration of the note, which, on its face, did not disclose in what the consideration consisted. This is always permissible, in order to show a foundation for a vendor’s lien; for few notes given in the purchase of land, show the consideration on which they are given.
The main point of the argument in this case rests on the fact that in one of the notes given when the first writings were drawn, the consideration expressed is the 240 acres that were conveyed by the first deed. This, it is contended, shows that there were two distinct purchases; the first, of 240 acres for sixteen hundred and eighty dollars, and the last, of 160 acres for eleven hundred and twenty dollars. If the evidence furnished by the papers stood alone, we might hold that it • establishes the proposition contended for. We think, however, it is but evidence tending to prove the fact, and that oral proof may be received to rebut such inference, withotit
The decree of the Chancery Court is reversed; and this court, proceeding to render the decree that court should have rendered,- doth hereby order1 and decree that the complainant is entitled to relief as to the entire four hundred acres of' land, for the payment of the amount due him on said judgment and the costs of that suit.—See Kelly v. Payne, 18 Ala. 371.
But inasmuch as it may be desirable to sell the lands, not as one body, but in a certain order, so as to save the defend-ant’s homestead, if possible, we will leave the court below, which has better opportunities for meting out proper equities than we can have, to adjust the details of the decree. The register will report to the next term of the Chancery Court the amount that will be then due to complainant, including: interest and costs.
Beversed, rendered and remanded.