Jones v. Gainer

TYSON, C. J.- — The averments of the bill sIioav that the complainant has paid a portion of the purchase money in pursuance to the terms of sale made Avith the agent of respondent Gainer, and was put into possesion of the land by the agent under his contract of purchase, and [220] that since his purchase he has made improvements upon the land to the extent in value of $600. The averments also show that the contract of sale was oral, but it is shown that the agent, by and with the consent and knowledge of his principal, put complainant in possession. The case made is clearly within the exception provided by subdivision 5 of the statute of frauds (section 4289, Code 1907), unless the agent’s authority to put complainant in possession Avas required to be in Avriting, The plain purpose of the exception Avas to make valid all verbal contracts for the sale of lands, or of any interest therein, where the purchaser pays the purchase money, or a portion thereof, and is put in possession by the seller. In short, where the purchase money or a portion of it is paid, and the purchaser is put in possession by the seller, no writing evincing the contract of sale is necessary to the validity of the contract. The factum of a contract of sale, the payment of the purchase money, and the putting of the purchaser in possession may be shown by testimony independent of any writing. If these matters may rest in parol, there is no good reason for holding that the principal may not orally delegate the authority to his agent to put the purchaser in possession, or may not orally ratify such act if done without authority. There is nothing in the language of this subdivision of the statute, or in its policy, which requires such, a delegation of authority to be in Avriting, or which prevents the application of that familiar maxim of the laAV, “Qui facit per alium facit per se.” There is also another consideration why the bill should not have been dismissed. The rule is well established in this jurisdiction that a bill, brought by a purchaser, to compel specific performance of a particular contract of sale, may be retained, notAvithstanding the [221] enforcement of performance is refused because of a failure to establish by proof the contract as alleged, for the purpose of allowing the purchaser compensation, where it appears that he went into possession and made valuable improvements on the land upon the faith of his contract, if he has not a full and adequate remedy at law. That complainant has not an adequate remedy at law for the improvements made by him is too clear for disputation. He is entitled to have a lien declared, if his averments are true, upon the lands for his reimbursement, and equity alone can declare and enforce such a lien. —Powell v. Higley, 90 Ala. 103, 7 South, 440; Allen v. Young, 88 Ala. 338, 6 South. 747; Cowan v. Sapp, 81 Ala. 525, 530, 8 South. 212; Irwin v. Bailey, 72 Ala. 467, 476; McWilliams v. Jenkins, 72 Ala. 480, 486; Aday v. Echols, 18 Ala. 353, 52 Am. Dec. 225. The chancellor seems to have dismissed the bill upon the ground of laches; and the correctness of this holding is asserted and attempted to be sustained by appellees’ counsel. A number of cases decided by this court are cited and relied on as supporting the ruling and the contention made. An examination of these will readily disclose that they are not applicable to this case. In no one of them had the complainant been put into possession under his contract of purchase, remaining continuously therein under the contract. It is this fact, together with the further fact that complainant has never been put in default, that differentiates this case from those cited by appellees’ counsel. The principle here controlling, in the language of Mr. Pomeroy, is this: “In determining what amount of mere delay in briging this suit will defeat the plaintiff’s claim to specific performance, or, in other words, what lapse of time, after its right of action accrued, will render the demand stale, the rule prevails in equity, as in law, that while the [222] plaintiff is in possession under an assertion and exercise of right the lapse of time does not prejudice his remedial right. If the vendee, therefore, takes and retains possession of the premises with the vendor’s consent, his mere delay in bringing a suit, or even in paying the price, will not prevent him from compelling a conveyance upon a subsequent payment or tender of the amount due; nor will his right to the relief be cut off until the vendor places a limit to the lapse of' time by a demand of payment at or before a specified day, and by notice that the agreement will be rescinded unless the demand is complied with, and the vendee’s default thereon. The defendant, in order to avail himself of the plaintiff’s delay as a defense, must have performed, or been ready and willing to perform, all of the terms of the contract on his own part.” —Pomeroy on Contracts, § 404, and cases cited in note; Tate v. Pensacola Gulf Co., 37 Fla. 439, 20 South. 542, 53 Am. St. Rep. 251; New Barbadoes Toll Bridge Co. v. Urceland, 4 N. J. Eq. 157; 26 Am. & Eng. Ency. Law (2d Ed.) p. 81, and cases cited in note. The decree dismissing the bill was erroneous, and must be reversed. A decree will be here rendered, overruling the motion to dismiss the bill. Reversed and rendered. Dowdell, Simpson, Anderson, and Denson, JJ., concur.