Opinion
SC 1353.
September 25, 1975.
Appeal from the Circuit Court, Morgan County, Tom B. Coggin, J.
Sherman B. Powell, Decatur, for appellants.
The delivery of possession which will satisfy the provision that a parol contract for the sale of land shall be valid where the purchase price or a part thereof is paid and possession of the land is delivered to the vendor, may be made by an agent of the vendor acting under oral authority of his principal, or may be accomplished by the act of an agent without authority, followed by an oral ratification by the vendor. Jones v. Gainer, 157 Ala. 218, 47 So. 142. To avert the bar of the statute of frauds, it is not essential that the written agreement be in any particular form, provided it contains the substance, and it is not required that all the necessary elements be in one paper. Borden v. Case, 270 Ala. 293, 118 So.2d 751. An executed instrument containing names of parties, subject matter of contract, consideration, and promise is sufficient under statute of frauds. Dobson v. Deason, 248 Ala. 496, 28 So.2d 418. Where a contract to pay for care for the remainder of a person's life, and to bequeath property, was contained in letters, and which expressed the consideration and was signed by the person to be charged, the agreement was taken out from under the statute of frauds. Taylor v. Cathey, 211 Ala. 589, 100 So. 834.
Julian Harris, Decatur, for appellees.
"A sale of lands", in the meaning of the statute, has been broadly construed to cover not only the direct agreement to convey but any transaction whereby title to lands is to pass such as an oral agreement to make a will devising real estate, an exchange or an agreement merely to build a fence on land between the parties. Tillis v. Treadwell, 117 Ala. 445, 22 So. 983; * Vickers v. Pegues, 247 Ala. 624, 626, 25 So.2d 720; * Tidmore v. Handy, 277 Ala. 20, 166 So.2d 855. *Both the last two cases were before Subdivision (6) was added to Title 20, Section 3. A parol agreement for the sale of an interest in land not owned by the promisor, but the title to which resides in another, is within the Statute of Frauds. Tillis v. Treadwell, 117 Ala. 445, 22 So. 983. Under the exception of paying the purchase price and being put in possession, the possession of the proposed purchaser must be exclusively referable to the contract. It must be such possession that an outsider, knowing all the circumstances attending it to save only the one fact, the alleged oral contract, would naturally and reasonably infer that some contract existed relating to the land of the same general nature of the contract alleged. Jones v. Jones, 219 Ala. 62, 121 So. 78; Robertson v. Driver, 132 Ala. 169, 31 So. 495. The putting in possession in order to bind the seller must be by him, at a time when he had the possession either actual or constructive to deliver and it must be continuous. Formby v. Williams, 203 Ala. 14, 81 So. 682. The contract is void if oral testimony is necessary to prove any part of it. Jones v. Pettus, 252 Ala. 12, 39 So.2d 12.
The legal question presented is whether a letter containing an offer to convey to promisee one-half of everything the promisor receives by way of inheritance can be specifically enforced.
Plaintiffs are husband and wife. Defendants are husband and wife. Plaintiff wife is the sister of the defendant husband. The subject property was inherited by defendant husband from one Molly Terry, the aunt of plaintiff wife and defendant husband. Plaintiffs claim a one-half interest in all of this property on the basis of an alleged agreement contained in a letter, allegedly written by defendant wife in 1956, and also on the basis of an oral agreement, allegedly made by all of the parties. The letter provided, generally, that if the plaintiffs would move back from Chicago to Alabama, to take care of Molly Terry, defendants would help them build a house and would give them one-half of whatever they got from Molly Terry. The plaintiffs also agreed that they would give defendants one-half of whatever they got from Molly Terry.
It is undisputed that the plaintiffs moved back to Alabama, built a house on Molly Terry's land, next to her, and took care of her. The length of time they cared for her is in dispute. Some evidence indicates that it was for six or seven years. Other evidence indicates that it was for four or five years. Molly Terry was an invalid the last two years of her life.
Plaintiffs maintain that the letter allegedly written by the defendant wife on behalf of herself and her husband was sufficient upon which the court could order specific performance. The plaintiffs also claim that the oral agreement was enforceable.
Defendant husband denied authorizing his wife to write the letter for him. He also denied entering into an oral agreement. Defendant wife also denied that she sent any letter to the plaintiff to that effect, and also denied the existence of any oral agreement. The trial judge found for the defendants. His final decree, in part, reads as follows:
"* * * The Court is of the opinion that the statute of frauds applies and further that there is insufficient evidence to establish a trust based on fraud. As pointed out in the defendants' brief Manning v. Manning, [Pippen] 95 Ala. 537, 11 So. 46, [56] sets the standard in holding that a mere promise and the breach of that promise is not sufficient to create a trust. There must be some evidence of fraud other than the breach of the promise. It is, therefore, considered, ordered and adjudged that the plaintiffs take nothing and the cause be, and hereby is, dismissed."
Before discussing the merits of the appeal, we address first a procedural point raised by the appellees. They say that the appellants have appealed from the trial court's judgment overruling their motion for a new trial, and since this was a case formerly cognizable in equity, the cause should be affirmed because the appellants have made no assignments of error with respect to the final decree, but only as to the motion for a new trial.
This cause was originally filed after the effective date of the Alabama Rules of Civil Procedure. Plaintiffs filed a motion for new trial pursuant to Rule 59, ARCP. Admittedly, under former practice, a decree or order denying an application for rehearing in equity which did not modify the original decree would not support an appeal. Former Equity Rule 62; Whiteport v. Whiteport, 283 Ala. 704, 220 So.2d 891 (1969). The Alabama Equity Rules have been superseded by the Alabama Rules of Civil Procedure. See Appendix II, Alabama Rules of Court, 1975, p. 296. While the validity of the Appendix can be challenged, this Court said, when it promulgated the Rules, that "* * * Appendix II, Statutes and Rules Superseded, shall be viewed with a presumption of validity." Order, January 3, 1973; Alabama Rules of Court, 1975, p. XX.
In view of what we have said, appellants' assignments of error which claim that the trial court erred in overruling their motion for new trial will be reviewed. Former Equity Rule 62 has been superseded.
We only discuss that portion of the court's decree determining that the Statute of Frauds applied, because this was the only issue which appellants substantially argue on appeal.
There was sufficient evidence before the trial court from which the court could have determined that the agreement could not be specifically enforced because: (1) the description of the land to be conveyed was insufficient. Cf. Goodwyn v. Jones, 288 Ala. 71, 257 So.2d 320 (1971); (2) the wife's signature was insufficient to bind her husband because she was not authorized in writing to be the agent of her husband. See Title 20, § 3, Code of Alabama 1940, (Recompiled 1958); (3) the alleged oral agreement was insufficient in that the promisors neither had title nor possession when the promisees were put in possession of the land. See Title 20, § 3(5), Code of Alabama 1940, (Recompiled 1958); Formby v. Williams, 203 Ala. 14, 81 So. 682 (1919).
We find that there was sufficient evidence upon which the trial court could have determined that the alleged agreements failed to comply with the Statute of Frauds. The judgment is due to be affirmed.
Affirmed.
HEFLIN, C. J., and MERRILL, JONES and SHORES, JJ., concur.