Harrison v. Parmer

STONE, C. J. — -This is a statutory real action, brought by the appellee, Parmer. In such action, only legal titles can be looked to. No matter how complete an equity may be shown, it will neither maintain the action, nor defeat it, against a claimant under a legal title. Only a court of chancery can recognize and enforce equitable claims to lands.- — Yon v. Flinn, 31 Ala. 409 ; Tutwiler v. Munford, 73 Ala. 308; Slaughter v. McBride, 69 Ala. 510. The defendant derived all the claim he asserts from the plaintiff. He went into possession under an alleged contract of letting, which he claims secures to him a lease-hold term of five years duration, commencing on January 1st, 1881. The writings and all the testimony show this to have been the relation of the parties. This is conclusive of plaintiff’s right to recover, unless defendant can show a paramount legal title which dominates it. — Bishop v. Salouette, 67 Ala. 197; Houston v. Farris, 71 Ala. 570; Otis v. McMillan, 70 Ala. 46. The inquiry in this case is, whether there was a lease, or only an executory agreement for a lease. If the former, then plaintiff has no right to recover in this action. If the latter, then defendant can not defend this suit, but will be left to his action for damages, or to a bill for specific performance, if he complies with the terms of the contract on his part. Parmer can not invoke the statute of frauds, as a defense to any attempt to charge him, no matter whether the writing be treated as an executed lease, or merely as an executory agreement. He admits the paper was signed by him, and it has one attesting witness. — Code of 1876, § 2115 ; Heflin v. Milton, 69 Ala. 354 ; Phillips v. Adams, 70 Ala. 373 ; Cooper v. Hornsby, 71 Ala. 62 ; Browne Stat. Frauds, § 397. The parties to this suit had three interviews in reference to the alleged lease. At the first two of those interviews, the witness King was alone present. At the first meeting, in August, 1883, an agreement was drawn up, signed by both parties, and witnessed by King. This agreement described the premises to be let, the commencement and duration of the leasehold term, and the annual rent to be paid. It was not an executed lease at that time, for it contains the clause, “Notes and papers to be drawn up as soon as convenient.” This paper was left with Parmer until the second interview, and during that time the contracting parties took no action under the agreement. The second interview was late in September, or early in October. At that time a paper was drawn up, specifying particularly the duties and obligations to be incurred by Harrison, the [162] proposed tenant. This paper was signed by TIarrison only, witnessed by King, and both it and Harrison’s notes for rent were delivered to, and received by Parmer. Parmer then surrendered the agreement first entered into, and it was handed to Harrison, who retained it until December 31st — the time of the third interview. The testimony of King is, that after Harrison executed the notes and the paper at the second interview, “ the plaintiff [Parmer] took the said five notes, and also the said instrument then drawn up and signed by Harrison alone, and plaintiff gave up the original paper signed by both plaintiff and defendant, and said original paper was given to defendant; that he, King, did not have time, at that meeting, to draw up for Harrison a duplicate of the paper drawn up and handed to Parmer; and that the original paper, executed August 9th, was handed to Harrison, to be kept until the duplicate could be drawn up for him ; and it was understood they (the witness, plaintiff and defendant) were to meet again, for the purpose of drawing up a duplicate of said paper, to be given to Harrison.” Plaintiff testified as a witness, that he received said notes and said paper signed by Harrison ; that he then gave up the original contract signed by him and Harrison, and that Harrison took the same. He testified that, when he did this, he insisted that certain named stipulations and reservations should be put in the contract, which were not put in; but, in this, he was contradicted by King and by Harrison. He, Parmer, offered no explanation of his conduct, in receiving and carrying off'the notes and contract signed by Harrison alone. • True, the notes were signed by defendant’s mark, and have no witness. The agreement, however, accurately describes the notes, and that was both signed by Harrison, and witnessed. If this transaction had closed with the acts done at the second meeting, there can be no question it would have been an executed lease, — not a mere agreement to give a lease. The instrument signed by both parties, and then delivered to defendant, was so executed by Parmer, the party sought to be charged in this suit, as to be binding on him under the statute of frauds. Code, § 2145 ; Bro. Stat. Frauds, § 397. That instrument described the premises and the parties, and specified the rent reserved, and the commencement and duration of the lease. The second paper, and the notes executed by Harrison at the second interview, would fill the requirement in the original agreement, “Notes and papers to be drawn up as soon as convenient.” The original agreement being delivered to Harrison, in the presence of Parmer, and without his dissent, these writings evidenced every element of an executed contract of lease. If, as Parmer contends, certain stipulations and reservations were omitted from the writing, he must be held to have waived [163] them, when he accepted Harrison’s notes and obligation, which made no mention of them. Such is the fate of all oral negotiations, not carried into the written contract afterwards executed and accepted. — Pettus v. McKinney, 74 Ala. 108. What occurred, however, at the second interview, shows that the parties did not then consider the transaction closed. They were to have a third meeting. The expressed purpose of that third meeting was, that a duplicate, or counterpart of the paper executed by Harrison alone, was to be prepared and given to him ; and when so prepared and delivered, Harrison was to surrender the original joint agreement. Now, this agreed duplicate, or counterpart — the original agreement being surrendered up — would be incomplete and worthless, without the attested signature of Parmer, the plaintiff. Neither the parties, nor King, the draughtsman, considered the writings complete ; and hence we must hold there was not a compliance with the stipulation in the original agreement, that the notes and papers were to be drawn up as soon as convenient. We feel constrained to hold there was only an agreement for a lease, which can only become a legal holding, by a lease executed, or a bill for a specific performance. — Taylor, Landlord & Tenant, §40 ; Doe v. Ashburner, 5 T. R. 163 ; Goodtitle v. Way, 1 T. R. 735 ; Doe v. Clare, 2 T. R. 739 ; Doe v. Smith, 6 East, 530 ; Weld v. Traip, 14 Gray, 330. Some testimony given by plaintiff, of conversations preceding the first writing, may have been illegal. It could not, however, vary the result of the trial. Hnder no circumstances, according to the rules above declared, can the defendant resist a recovery in this suit. Affirmed.