Wilkins v. Hardaway, 48 So. 678

Wilkins v. Hardaway

48 So. 678 | Ala. | 1909

McCLELLAN, J.

Bill for specific performance of contract to convey real estate. The report of the case *568will contain the instrument exhibited with the bill. Paragraph 4 of the bill, as at present important, is as follows: “Orator further avers that in accordance with the provisions of said contract a survey was made, and the area of the tract agreed to be sold was ascertained to' be 11.8 acres. * *” Prom paragraph 5 of the bill it appears that “the exact description of the lands agreed in said contract to be conveyed, as shown by the survey thereof, is as followsAnd it then proceeds with a minute description of the land, and latterly in the paragraph it is stated “that the lands described in this paragraph are the same lands agreed in said contract * * * to be sold, as ascertained by the survey thereof according to the terms of said contract.”

It is necessary to note that the appeal is from a decree overruling a demurrer to the bill, the grounds of which will be stated hereafter; the sufficiency of the agreement under the statute of frauds not being among them. These grounds of the demurrer taking the objection that the specific performance sought would impinge the homestead right, either in the particular tract or in the right of selection thereof from a larger tract, cannot be approved upon the averments of the bill, for the reason that it does not appear therefrom that the 11.8 acres are a part of the homestead of the respondent. It does appear that it is a part of a larger tract owned by respondent; but that may, of course, well be, and yet the 11.8 acreage may not now be, nor ever be selected as a part of the home-stead of respondent. Indeed, he may in fact own, and reside upon, as his homestead, other lands in Chambers county. On this bill we cannot assume the fact necessary to give pointto the stated ground of demurrer. — Moses v. McClain, 82 Ala. 370, 2 South. 741, and Lyon v. Hardin, 129 Ala. 643, 29 South. 777, are not authority here, since in those cases it appeared that homestead rights were, in fact, involved.

*569It appears from the contract that the actual erection of the dam was not necessary to the establishment of the crest thereof as a basis for the west line of the tract to be conveyed. That point of government of the west line was, then, to be ascertained merely by the decision as to the height of the dam. The bill, in paragraph 4, alleges the ascertainment of the area according to the provisions of the contract, and warrants the conclusion that the essential condition — the crest of the dam —to the location of the west line Avas met by the selection of its location and the determination of its height. Indeed, from the averments of the bill, viz., “that in accordance with the provisions of said contract a survey of said lands Avas made and the area of the tract agreed to be sold Avas ascertained to be 11.8 acres,” Ave cannot avoid the conclusion that Scott himself, if his action was essential under the contract, fixed the height of the dam from the crest of which the Avest line of the tract was to find its basis. If so, the subject-matter of the contract was rendered certain to every intent; and that such a contract is assignable is not to be controverted. — Kett v. Day, 14 Pa. 112, 53 Am. Dec. 526; 4 Cyc. p. 20 et seq., and notes; 2 Am. & Eng. Ency. Law (2d Ed.) p. 1044 et seq.

The remaining ground of demurrer is that the contract is too uncertain to be specifically enforced. The argument in support of this ground is predicated upon the fact that the contract reposed in Scott the right to determine the location of the west line of the tract by a •determination of the height of the dam, thus, in effect, creating a right of choice or selection in S'cott, and not defining such west line in the instrument itself. We are of the opinion that the stated ground of demurrer was properly overruled.

*570The bill, for the purposes of the demurrer, as we have indicated before, contains sufficient averments to show that the uncertainty of the west line was rendered certain by the ascertainment of the area agreed to be sold, thus, and necessarily, fixing the basis of such line by a determination of the height to which the dam was desired to be erected. — Fry’s Sp. Perf. §329; Jenkins v. Green, 27 Beavan, 437.

The demurrer was not well taken in any respect, and the decree overruling it must be affirmed.

Affirmed.

Dowdell, G. J., and Simpson, Anderson, and May-field, JJ., concur. Denson and Sayre, JJ., dissent, and are of the opinion that the objections interposed to the bill raised the question of the statute of frauds.