Nelson v. Hammonds

McCLELLAN, J. The demurrer, taking the objection that the bill is without equity, was properly over [19] ruled. The broad equitable foundation of the bill is specific performance of a contract to convey land. If it be assumed that the agreement for the averred sale and purchase was not reduced to writing, since it is not expressly alleged that it was reduced to writing, the exception provided in the fifth subdivision of the statute of frauds (Code 1907, § 4289; Code 1896, § 2152) is averred to have been complied with by the payment of the purchase money, and by putting the complainant (purchaser) into possession. If other subordinate phases of the relief sought by the bill are (we assume, without affirming) vain, that fact cannot neutralize the broader equity asserted in the bill. The other question presented for review is that the chancellor erred in overruling the joint and several motion of respondents to dissolve the temporary injunction, issued in accordance with the prayer of the bill.— Code, § 2839; sections 4526, 4535. Code, § 4535, provides: “Upon the hearing of motion to dissolve an injunction, the court may consider the sworn bill and answer, whether the answer' contains denials of the allegations of the bill or independent defensive matter, and also such affidavits as any party may introduce.” Previous to this statute on motion to dissolve injunction affidavits were receivable, in certain exceptional cases, in refutation of the denials of an unequivocal, full, specific, sworn answer. — Barnard v. Davis, 54 Ala. 565; Harrison v. Maury, 140 Ala. 523, 37 South. 361, among others. One of these exceptions was where waste Avas a probability if restraint of the adversary Avas not enforced. The cited statute entirely changes this rule by rendering serviceable upon the issue of dissolution A^el non in all cases evidence consisting of the bill, the answer, whether it carries denials of the bill’s averments of fact or not, and “affidavit” in [20] troduced by any party. The feature of the earlier rule in respect of the largely conclusive character of the sufficient'denials of the sworn answer cannot consist with the practice established by the statute quoted. It is hence abrogated; and with the overthrow of the rule of practice in that particular must, of course, go any influence otherwise to have been accorded decisions illustrating the now abrogated rule of practice. The full consequence of the change, as wrought by the statute, is not now attempted to be described. It will suffice to say at this time that conclusions for or against dissolution of injunctions will and must under the statute be treated here on review as any other finding of fact at equity upon a defined issue. This interpretation of the quoted statute accords with that provided in the feature of the system where the hearing is to determine the issuance vel non of an injunction.— Code, §§ 4528, 4529. In the cause at bar, the complainant and his son were orally examined before the chancellor in opposition to the dissolution sought; and their testimony was reduced to writing and appears in the transcript. This was irregular, since the statute (Code, § 4535) stipulates that affidavits may be submitted by the parties. Strictly speaking, such examinations of the complainant and his son, as this transcript describes, though reduced to writing, as shown, did not constitute these statements affidavits. — Watts v. Womack, 44 Ala. 605; Wright v. Smith, 66 Ala. 545; Savage v. Atkins, 124 Ala. 378, 27 South. 514. However, it does not appear from the transcript that any objection, was made to this manner (oral examination) of availing of the evidence of complainant and of his son. Indeed, it affirmatively appears that these two persons were cross-examined. In brief, the solicitor for appellants asserts that objection was made to this oral examination, but this as [21] sertion cannot, of course, avail to supplement, if not refute, the record. Without waiver by the party opposed, oraí examination should not be substituted for the affidavits contemplated by Code, § 4535. In this state of the record we feel bound to review the propriety of the chancellor’s conclusion as that may be affected by the consideration of the several affidavits, offered by the movants for dissolution, and by the testimony, taken ore tenus, of complainant and of his son, as well as by the bill and sworn answers. To this status of the evidence before the chancellor, solicitor for appellee invokes the application of the rule, reannounced in Denman v. Payne, 152 Ala. 342, 44 South. 635, among others cited in brief, that the finding will be treated as would be the finding of a jury upon evidence delivered ore tenus and that the conclusion of fact will not be disturbed unless the testimony so illy supports it as that a verdict might under similar circumstances, be annulled. We see no escape from the application of the rule indicated to the conclusion here brought up for review. Nor does its application impinge upon the rule of the statute, viz., that the chancellor’s findings upon fact shall have no influence upon the review thereof. The absence here of the same bases of conclusion distinguishes the operation of each rule. Whether the facts alleged in the bill, upon which its equity must depend, were true was the subject of sharp conflict between the affidavits and the sworn answers, on the one hand, and, on the other, the testimony of complainant and his son. A conclusion for or against the dissolution sought was invited by one or the other phase of the evidence. We are hence not assured by any means that the chancellor’s finding was erroneous. Affirmed. Simpson, Anderson, and Mayfield, JJ., concur.