Powell v. Higley

STONE, C. J. Many grounds of demurrer were interposed in this case, questioning the sufficiency of the bill. The City Court overruled the demurrer, and at the same time overruled the motion of defendants to dismiss the bill for want of equity. Those rulings are severally assigned as error- We think the bill sufficient, and find no error in either of these rulings. It is also urged on behalf of appellant, that there is a fatal variance between the allegations of the bill and the proof in the cause, and for that reason the decree should be reversed. We hold that the variances complained of are only incidental to the main inquiry, and that there is a substantial conformity of the proof to the allegations. There is no merit in either of the foregoing objections. There is very great contrariety of testimony in this record. We think that upon all material questions, save one, there is not much difficulty in' arriving at the true state of the facts. We summarize them as we feel authorized to find them reasonably established. ' First: That the legal title to the lots was in O. B. Powell, and he alone was authorized to make a contract of sale, which, per se, would be binding under the statute [107] ■of frauds. Second: That E. B. Powell was the agent of O. B., his brother, to negotiate sales of the lots, with enlarged discretion, if not some expectant interest, which, as a rule, O. B. Powell would and did ratify and make binding. Third: That when O. B. Powell was informed of the sale to ILigley, and its terms, he did not repudiate it outright, as being unauthorized, but that he so far sanctioned and approved it, though reluctantly, as to induce Higley to put improvements on the lots, in value exceeding that of the lots in their unimproved state; and that he stood by and witnessed the erection of the improvements, without remonstrance or objection. —Forney v. Calhoun County, 84 Ala. 215. Fourth: That when the piano arrived, he still failed to disaffirm the contract, and knowingly permitted the improvements to progress, until Watkins, by flight, disgrace and confessed insolvency, demonstrated that nothing could be expected from him. The question upon which the testimony leaves the .mind less satisfied is, whether,-when the piano arrived, .Powell so far recognized and treated it as his own, as to effect its sale through Higley as his agent. On this question, the testimony of Higley and that of Powell stand diametrically opposed. But, taking no account of the testimony of Watkins, who is heavily impeached, Higley’s testimony is materially corroborated by that of the witnesses Jemison and Lusky. In reaching the conclusion he did, the chancellor must have found this issue in favor of Higley, and we concur with him. The contract, as we have said, was not, when made, enforceable, by reason of the statute of frauds. When the piano, the promised consideration of the lots, was received by Powell — • we mean by received, When he assumed control and dominion over it, by directing its exchange for brick — this was payment for the lots, and took the contract-without the statute of frauds. Code of 1886, § 1732, subd. 5, and note; Heflin v. Milton, 69 Ala. 354. The chancellor did not decree the contract to be specifically performed; but, as we understand the record, his failure to do so was -not induced by any finding of his that the contract was not fair, just, reasonable and equal. — 3 Brick. Dig. 361, § 415 et seq. Passing on the question of values, the testimony inclines us to believe that, in negotiating the trade, both the lots and piano were overvalued. We are not convinced that the four lots had a greater value than the piano. The real difficulty was, that the year had expired,, and Iiigley had not built the second hopse, which his contract bound him to build within the year. This rendered it impossible to .enforce the specific performance of the contract. If this failure was the [108] result of Ms own neglect, or non-excused failure to perforin bis part of the stipulations, then chancery will grant Mm no relief, but leave him to his remedy at law, if he have any. Was his failure the result of his own non-excused fault? The chancellor must have found that it was not, and we agree with him. The contract was made in September, 1887, and by its terms, Higley was to erect on the lots one house in four months after October 1 then next, and a second house within twelve months. The first house was nearing completion, when in January, 1888, Powell notified Higley to surrender the possession of the lots to him at once, or pay'him eighteen hundred dollars, the purchase-price. This was before the expiration of the four months allowed for the erection of the first house, but after the receipt and sale of the piano. Soon thereafter Powell instituted the action of ejectment to turn Higley out of possession. This excused Higley from proceeding to erect the second house, and fixed the fault of the failure on Powell. The chancellor, although he declined to decree the specific execution of the contract, did not dismiss the bill. On the contrary, he decreed that complainant was entitled to relief, and ordered, adjudged and decreed, “that compensation be allowed and made to complainant for the payment made by Mm in and by the piano, . . . and for the improvements made by him upon said lots, . . . and that said lots” (describing them) “be and they are hereby charged in favor of the complainant . . , with an amount equal to the value of said piano, with interest thereon, . . . and also with an amount equal to the value of said improvements, with interest thereon, . . less an amount equal to the value of the use of said premises during the complainant’s possession thereof.” He then made an order referring the question of taking the account to the register. It is contended for appellant, that if appellee has any cause of action, it is a legal demand, and he should have been remitted to that forum for its assertion. We can not agree to tliis, for two reasons: First, the title being in O. B. Powell, and this contract made in the name of, and signed by E. B. Powell, complainant’s right was and is equitable, and can only be adequately enforced in equity. Second, Higley, under the circumstances of this case, was entitled to have a lien declared on the lots for his reimbursement, and equity alone can declare and enforce such lien. There may be other reasons, but the foregoing are sufficient. In Aday v. Echols, 18 Ala. 353, that able jurist, Chief Justice Dargan, said: “The rule is, that when a purchaser enters into possession, and upon the faith of a contract has made val109 liable improvements upon the land, and afterwards files a- bill to compel specific performance, but fails to make such a case as entitles him to that relief, the bill may be retained for the purpose of allowing him compensation, if he has not a full and adequate remedy at law.”—Goodwin v. Lyon, 4 Por. 297; Allen v. Young, 6 So. Rep. 747; 88 Ala. 338; 1 Story Eq. § 749a; Phillips v. Thompson, 1 Johns. Ch. 131; Pratt v. Law, 9 Cr. 456; Masson& Beranson’s Appeal, 70 Penn. St. 26; Pinnock v. Clough, 42 Amer. Dec. 521; Rider v. Gray, 69 Ib. 135; Amer. Land Co. v. Grady, 33 Ark. 550; Nagle v. Newton, 22 Grat. 814; Waterman Spec. Perf. § 515. We think the principle declared in Aday v. Echols, 18 Ala. 353, precisely covers this case, and that the City Court did not err in the decree rendered. Affirmed.