71 So. 177 | Ala. | 1916
The original bill in this cause was filed by the appellant Mrs. Wood, a married woman, for the reformation of a contract in writing, purporting to be an agreement between appellee Mrs. Lett on the one part and appellant Mrs. Wood on the other, by which said appellee was to sell a certain tract of land to appellant, in exchange for which appellant was to convey a certain other tract, said tracts being owned in severalty by Mrs. Lett and Mrs. Wood respectively, and for the specific performance of the contract according to its alleged true intent and purpose. There were other stipulations, but they do not seem to affect the question raised by this appeal, and need no further reference. The instrument, exhibited with the bill as amended, witnessed an agreement for the exchange of lands such as we have noted, “for and in consideration of the sum of one dollar in hand paid by Mrs. Lett and other valuable consideration,” and was by its terms to be performed after abstracts of title should be “brought down and turned over to each contracting party within ten days.” Apart from the sum of $1, which, according to the recital of the instrument, passed from the defendant (appellee) to the complainant (appellant), no consideration other than mutual promises passed between the parties. There was, of course, no mutual delivery of possession, as was the case in Goodlett v. Hansell, 66 Ala. 151. The cash consideration passing from defendant to complainant might seem to indicate a purchase by the former of an option to have an exchange, had the agreement been properly executed by the latter; and, had this instrument on both parts been completely executed to affect the interests of the parties in their respective lands, "then, of course, these mutual promises to convey, apart from the option, would have constituted valuable and sufficient considerations each for the other. But, as the court observed in regard
It is nowhere made to appear that J. S. Wood had any written authority to execute the agreement as the agent of his wife. It must on demurrer be assumed that he had no such authority (Knox v. Childersburg Land Co., 86 Ala. 180, 5 South. 578), and from the course adopted by complainant in meeting by successive amendments the several demurrers interposed to her bill, it is clear that this assumption is in accord with the fact.
So far as the statute of frauds is concerned, it is the settled law of this court that all the purposes of that statute are satis
And (4494) : “The wife •* * * cannot alienate or mortgage her lands, or any interest therein, without the assent and concurrence of the husband, the assent and concurrence of the husband to be manifested by his joining in the alienation in the mode prescribed by law for the execution of conveyances of land.”
The husband signed the instrument for himself and as agent for his wife, but he had no authority, such as the statute reauires, for executing it in the name of the wife. Thereby he did not join in an alienation, nor in an agreement to alienate, executed by the wife in the manner prescribed by law for the execution of conveyances of land by her, nor can his joinder in this bill be accepted, on the doctrine of relation, as an equivalent for the requirement of the statute, which contemplates an assent and concurrence manifested in a particular and exclusive mode at the time of the execution and delivery of the contract. The obligation of the paper writing exhibited with complainant’s bill must therefore, in equity as in law, be determined as of the time of its execution. There can be no doubt that in a court of law, or anywhere as against the wife, this agreement would be held to confer no color of right or interest. — Scott v. Cotten, 91 Ala. 629, 8 South. 783; Rooney v. Michael, 84 Ala. 585, 4 South. 421; Blythe v. Dargin, 86 Ala. 370.
It is to be noted, however, that in all cases the contract must possess all the elements and features necessary to the specific enforcement of any agreement, except the written memorandum required by thé statute. — 4 Pom. Eq. Jur. § 1409, note 1. Hence this court has seemed careful heretofore to limit its ruling, enforcing contracts for the sale of lands at the instance of non-subscribing parties, to cases in which the complainants were sui juris in respect of the contracts which they sought to enforce. The reason for this is not obscure.
Our conclusion is that the decree, sustaining appropriate demurrer to the bill, should be affirmed.
Affirmed.