Robinson v. Driver

132 Ala. 169 | Ala. | 1902

DOWDELL, J.

— The bill in (this case was filed for the specific performance of a contract for the sale of land. The bill avers that the complainant “is now in possession of the land,” described in the bill, and that com, plainant “was in the possession of the land,” when the respondent, the Magnetic Ore Company, a corporation, began its sud|t in ejectment to recover possession of the land from the complainant. Tlie judgment in tbe ejectment suit; sho wing a recovery by the Magnetic Ore Company against the complainant here is made an exhibit to the bill. In this judgment entry there is recited an agreement made by the parties in open court for the sale of the land by the plaintiff in that suit, the Magnetic Ore Company, to the defendant, wb o is the complainant here. There was ho writing signed by the Magnetic Ore Company, nor by anyone thereto authorized by it, as required by the statute in contracts for the sale of land. The bill' alleges that in pursuance of the agreement of sale set forth in the judgment' entry, the complainant here paid W. A. Collier, the attorney of record for the Magnetic Ore Company, twenty-five dollars in cash. The bill was demurred to on the ground that it showed on its face that the contract of sale as alleged was Amid under the statute of frauds.

Section 2152 of the Code of 1896 reads as follows: “In the following cases, every agreement is void, unless such agreement or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other pre-son by him thereunto lawfully authorized in Avriting and subdivision 5 under said section is as follows: “EArery contract for the sale of lands, tenements, or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof, be paid, and the purchaser be put in possession of the land by the seller.”

' The only contract of the sale averred in the bill is that shown by the recital in the judgment entry a copy of AAhich is made an exhibit to the bill. There is no pretense of any agreement, or note or memorandum thereof, expressing the consideration, in writing, and subscribed by the party to be charged thereicith, or some other person thereunto lawfully authorized in writing. The recital of the agreement of the parties in the minute entry, which constituted no part of the judgment proper, is not a compliance with the requirements of the above statute.

The bill avers tha¡t the complainant in accordance with the agreement paid twenty-five dollars in cash to W. A. Collier attorney for the plaintiff in the ejectment suit, but it does not aver that said attorney was authorized to receive the twenty-five dollars, as a payment of part of the purchase price of the land. Nor does the bill aver that the Magnetic Ore Company, the .respondent here, put the complainant in possession of the land under said agreement, or that being then in possession of said land, he was under said agreement continued in the possession, but as stated above, the only averment as to possession, is that the complainant is now in possession, that is, at the time of the filing of the bill, and that he was in possession when the ejectment suit ivas commenced against him. These aver-ments do not bring the ease within the exception of subdivision 5, above quoted, and are insufficient to take the contract without the statute.

The chancellor erred in overruling the demurrer, and the decree will be reversed and the cause remanded.