Reynolds v. Kirk

HARALSON, J. 1. On the facts set up in this bill, the complainant occupied a position that entitled him to file it, to remove a cloud on his title.—Rea v. Longstreet, 54 Ala. 291; Lytle v. Sandefur, 93 Ala. 399; Torrent Fire Co. v. City of Mobile, 101 Ala. 559; Barclay v. Henderson, 44 Ala. 269. 2. His purchase from- Stephens was not void under the statute of frauds. He went into the immediate possession, and has been holding and claiming it ever since, making annual crops and erecting improvements on it. He executed and delivered his promissory note to his vendor, bearing date the 14th January, 1889, a few days after the purchase, for $400, the purchase price of the land, payable on the 25th December following, reciting that it was in consideration of the land, on which he [451] then lived, describing the same land that is mentioned in the bill. This was sufficient to take it out of the statute of frauds. It contains the essential terms of the contract — describes the land sold, the price to be paid and the date of the payment — all expressed with such certainty, as that they may be understood from the writing itself, which was signed by the purchaser, the complainant. It was, on the payment or tender of the purchase money,- capable of specific enforcement.—Adams v. McMillan, 7 Port. 80; Carter v. Shorter, 57 Ala. 256; Heflin v. Milton, 69 Ala. 358; Phillips v. Adams, 70 Ala. 376; Lake-side Land Co. v. Dromgoole, 89 Ala. 508; Nelson v. Shelby M. & I. Co., 96 Ala. 524. 3. Kirk was in possession of the land, at and before the time of the execution of the mortgage by Stephens to Reynolds, the appellee. This was sufficient to put him on inquiry as to complainant’s title, and to charge him with notice of all the equities binding his vendor. Burt v. Cassety, 12 Ala. 734; Tutwiler v. Montgomery, 73 Ala. 264; Brunson v. Brooks, 68 Ala. 248; Bernstein v. Humes, 71 Ala. 261; Headley v. Bell, 84 Ala. 346; Price v. Bell, 91 Ala. 180. 4. It' it were necessary to decide, we would incline to the opinion, that the mistake, as it is averred in the bill, by which complainant’s land was included in defendant’s mortgage, was sustained by the evidence. The facts as averred in the bill and sustained by the proof, we may add, without further discussion, entitled complainant to the decree rendered in his favor by the chancery court, and it is affirmed.