93 Ala. 450 | Ala. | 1890
— This is a bill filed by the heirs at law of
Several grounds of demurrer were assigned against the bill. Of these, the 1st and 4th respectively are, that “said bill asks for a specific performance, and does not state with sufficient distinctness the terms of the contract between D. W. Trammell and his wife,” and (4), “It is not averred in the bill that Theodora W. Trammell took possession of the lands set forth in the bill.” These grounds of demurrer were sustained. The 2d, 3d, 6th, and 7 th assignments of demurrer proceeded on the theory, that the bill showed that the contract of sale and purchase between Trammell and his wife was not in writing, and failed to show such possession under it in the wife as, in connection with payment of purchase-money, took it out of the statute of frauds. These grounds were over* ruled, and' this appeal brings under review the action of the court in that regard.
It is thoroughly well settled, that in counting, either at law or in equity, upon a contract which the statute requires to be in writing, it is unnecessary to allege the fact that it is in writing. The question whether or not it is vitiated by noncompliance with the statute of frauds properly arises on plea or answer, and the infirmity resulting from the absence of a writing may be availed of on the evidence. — Dexter v. Ohlander, 89 Ala. 262. Where, however, the bill 'or complaint avers that the contract is not in writing, the defense may be taken -advantage of by demurrer; but the fact must clearly
The case, however, has been argued here on the assumption that the bill shows that the contract was not in. writing; and the discussion has been as to the sufficiencjr of its averments, in respect of the possession of the purchaser, to bring the transaction within the exception of our statute in favor of parol contracts for the sale of lands, where the purchase-money, in whole or in pa*t, has been paid, and the purchaser has been put in possession by the seller. These averments are, that Mrs. Trammell went into immediate possession of the land under said purchase, and that her husband “so recognized her in possession of said land.” They are clearly open to the construction, when taken in connection with the marital relation existing between the parties, that they both had possession as husband and wife before the sale, that they continued in possession after the sale, and that the only change in their respective attitudes toward the land resulted from the recognition by the husband of a different right in her, to which the continued possession was referable. This is not, and can not be, that notorious and exclusive possession taken under the contract, and solely referable to it, which is essential to. bring the contract within-the exception of our statute. — Code, § 1732 ; 8 Am. & Eng. Ency. of Law, pp. 738-745; Browne Stat. Frauds, §§ 465, 486.
It was upon the complainants, assuming the bill to have shown that the contract rested in parol, to bring themselves clearly within the exception of the statute. While a husband might put his wife in possession, and while she might hold possession, notoriously and exclusively — as, for instance, of lands upon which they did not reside, and of which she might have the requisite possession by a tenant or agent — the averments of the bill fall far short of showing the notoriety and exclusiveness in the taking and retention of possession which
Affirmed.