93 Ala. 465 | Ala. | 1890
— This case went off in the Circuit Court on an order dissolving the attachment. The language of the affidavit for attachment is, “that the sa.d Alfred Parrish is justly
The objection urged, and which prevailed in the .ruling on the motion to dissolve, was that there was not, in fact, any such debt as could support the attachment. We learn this from the bill of exceptions, and from the motion to dissolve,» which is made a part of it. This, if true, would vindicate and maintain the correctness of the course pursued in getting rid of the process of attachment. — Dryer v. Abercrombie, 57 Ala. 497; Johnston v. Hannah, 66 Ala. 127; 3 Brick. Dig. 55, § 25. We hold, however, that this is not a case to which the rule is applicable.
The facts of this case were agreed on, and may be thus stated: In February, 1890, the plaintiff agreed with the defendant to sell him the mineral rights in an eighty-acre tract of land, for twenty-four hundred dollars, ten dollars of which he, Parrish, paid her in cash, and he promised to pay her the balance in the month of March following. She executed a writing, binding herself to make him title, but his promise was oral. He, Parrish, however, went immediately into possession, through his agents, and commenced to do very decisive work on the land, preparatory to mining it for iron’ ore. How long this work continued, or whether it has ever been discontinued, is not shown. There is no dispute -about these facts. On that day, or the next, Mr. Parrish wrote to his attorney in reference to said land, in which he says, “I went to her and purchased it at her price, $30.00 an acre.” These are substantially all the facts that were developed on the motion.
The contention in the Circuit Court was, that in as much as Parrish, neither by himself, nor an agent authorized in writing, entered into ail agreement of purchase, evidenced by writing and expressing the consideration, the alleged agreement of purchase is void under the statute of frauds, and that no suit at law can be maintained against him for the breach of such alleged promise. — -Code of 1886, § 1732. That if
Before the enactment of the English statute of frauds — 29 Charles the Second — lands were conveyed by what was known as livery of seisin; and it may be that what was done in this case would at common law have operated to effectually convey the legal title. Land titles with ns, however, usually exist in grant; and if Parrish were asserting claim to the land, his remedy would doubtless be in equity. Having, in fact, no title, he could maintain no action at law for the recovery of the land, according to our rulings. Under the terms of the contract, as admitted, he-will not be - entitled to a deed until he pays the purchase-money; and without a deed, or some other evidence of legal title or its equivalent, he could not recover the lands in an action at law.
The question in this case is wholly different. Part of the purchase-money was paid, and possession was taken under the contract of purchase. That brings the case directly within the exception to our statute, which excepts from its nullifying influence oral sales and leases of lands, when “the purchase-money, or a portion thereof, is paid, and the purchaser put in the possession of the land.” — Code of 1886, § 1732, subd. 5; Heflin v. Milton, 69 Ala, 354; Linn v. McLean, 85 Ala. 250.
The Circuit Court erred in dissolving the attachment.
Reversed and remanded.