Barclift v. Peinhardt

SAMFORD, J. Accepting the conclusions of the trial judge as to the facts, as necessarily evidenced by the judgment rendered, the facts necessary to a decision of this case are as follows: The defendant owned an undivided interest in and to a certain house and lot in Cull-man, Ala.; the other interest being owned by defendant’s three minor children. On December 16, 1919, defendant agreed to sell this house and lot to plaintiff, and plaintiff agreed to purchase, at and for the sum of $3,500. One thousand dollars was paid in cash, the remainder to be paid or secured upon the perfection and delivery of the deeds, which were dependent upon the action of the chancery court, in a proceeding to be instituted for a sale of the land for-division between the owner, which the parties estimated would be about 60 days, and which, not being of the essence of the contract, meant within a reasonable time. In March, 1920, and before the court had acted on the petition for sale for division, defendant rented the premises to one Nash, the rental contract being made and signed by plaintiff, and after which Nash paid his rent by check made payable to plaintiff, and by her indorsed and [341] --turned over to defendant, who gave her credit for same as against the purchase money. The decree of the court authorizing sale was finally entered, sale made, and deeds tendered in November, 1920, at which time they were declined by plaintiff; she repudiating the agreement and demanding the return of the money already paid. The one question involved in this appeal is whether, under the foregoing facts, the contract of sale was void, as being in violation of the statutes of frauds. Section 4289 of the Code of 1907 provides: “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,” etc. “(5) Every 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 note or memorandum made of the transaction in this case, is a receipt given by the defendant in the following words and figures, to wit: “Cullman, Ala., 12/16/19. “Received of Mrs. M. C. Barclift $1,000, one thousand dollars, as payment on the bungalow, and will turn deeds over as soon as chancery •court will permit, and upon receipt of $2,500 or mortgage against property. Due the 15th of November. [Signed] A. H. P.” [1] It is conceded, and rightly so, that the foregoing does not meet the requirements of the statute, and if this were all there was in the case the plaintiff would be entitled to recover. Nelson v. Shelby M. & I. Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116. But the evidence is that $1,000 of the purchase .money, was paid in cash, and the trial court found that, the purchaser was put into possession. If this is true, then the transaction is taken from under the influence of the statute, and the plaintiff could not recover, unless the defendant had failed to complete the sale, or offered to do so, within .a reasonable time, being at the time able to convey title. On this last proposition the trial court properly held, that time was not of the essence of the contract and that, under the facts, a tender of the deed on November 4, 1920, was within a reasonable time. [2] The only question then left for us to •determine under the facts is: Was the plaintiff put in possession of the property, within the meaning of subdivision 5 of section 4289 of the Code of 1907 V This seems to be a question of first impression in this jurisdiction, and, indeed, the exact question has not been passed upon in any of the opinions coming to our attention. In the case of Flinn v. Barber, 64 Ala. 193, Brickell, C. J„ speaking .for the court, said: “In the absence of stipulations that a vendor sells only a partial interest, or such title or estate as he may have in particular lands, the presumption is that the inducement to a vendee to buy is that he may acquire a good and indefeasible title. The right to such title does not spring from the express agreement of the parties; it is given by law; unlesp the agreement repels its existence.” See Cullum v. Branch Bank & Co., 4 Ala. 21, 37 Am. Dec. 725. In the case at bar, the agreement was for a sale of the entire and indefeasible fee, while it is also admitted that the defendant only owned an undivided interest in the property, the other interest being owned by his three minor children. The only possession, therefore, had by the defendant, was that of a tenant in common, and. any act on his part could not in any legal way be binding on his other cotenants. The possession, therefore, delivered by the defendant to the plaintiff, was only such possession as he had, and did not place the plaintiff in the notorious and exclusive possession of the property. There was no time at which the plaintiff could have maintained an equitable action for the enforcement of the contract of purchase, so that upon compliance on her part she could have enjoyed the full fruit of the purchase, and, however anxious the defendant might have been to have performed on his part, he could not have done so. [3] The possession which the law requires to afford evidence along with proof of payment of a part of the purchase money, taking the place' of, and performing the office of a written memorial of the transaction, must not only be notorious, but exclusive, embracing the entire estate contracted to be conveyed. This rule is laid down in Browne on the Statute of Frauds, §§ 472 and 474, and recognized in Trammell v. Craddock, 93 Ala. 450, 9 South. 587, as well as in decisions of courts of last resort noted in Browne on the Statute of Frauds, supra. It is of no moment that the defendant after agreeing to sell the property filed a bill in chancery seeking a sale of the land for division between him and his children. What he did in the sale of the property and in the filing of tho bill in no sense bound his children, nor ■ had the effect of transferring the children’s possession to the plaintiff. The judgments and decrees of courts cannot be made the subjects of speculation, even by a parent acting in the utmost good faith. The agreement being void, the plaintiff was entitled to recover the part of' the purchase money paid under it, and, failing to render such judgment, the trial court was in error. The judgment is reversed, and the cause is remanded. Reversed and remanded. Footnotes [1] other oases see same topic and KEY.-NUMBER in all Key-Numbered Digests and Indexes