Opinion
5 Div. 764.
December 16, 1920.
Appeal from Circuit Court, Tallapoosa County; Lum Duke, Judge.
J. W. Strother and J. Percy Oliver, both of Dadeville, for appellant.
Where the action is for specific performance of a parol contract for the sale of land, the contract must be certain and definite, must be as definitely alleged, and established by clear and satisfactory proof as alleged. 155 Ala. 644, 47 So. 80; 157 Ala. 105, 47 So. 195; 95 Ala. 172, 10 So. 225; 91 Ala. 180, 8 So. 565; 88 Ala. 338, 6 So. 747; 71 Ala. 92; 57 Ala. 625; 36 Cyc. 689.
J. Sanford Mullins, of Alexander City, for appellees.
The allegation and the proof authorized the decree rendered by the court. 162 Ala. 524, 50 So. 361; 19 Ala. 481; 28 Ala. 432; 77 Ala. 339; 181 Ala. 179, 61 So. 817.
In an action for the specific performance of a parol contract for the sale of land, the terms of the contract must be definitely alleged and established as alleged by clear and satisfactory proof. Jones v. Jones, 155 Ala. 644, 47 So. 80, and cases there cited. The proof in this case fails to establish a contract between C. B. Hunt and his wife, whereby he was to sell and convey to her his undivided one-half interest in the land. The trial court therefore erred in granting the complainant's relief, and the decree is reversed. The proof in this case, however, may disclose a right to equitable relief, which we do not feel disposed to suggest or point out, as it is not available under the present averments of the bill if at all, and we will remand the cause in order that complainants may have an opportunity to amend their bill should they see fit to do so. Under the present state of the record, the trial court not only erred in granting the complainants relief, but in dismissing the respondent's cross-bill, as she would be entitled to a partition unless her legal title is ultimately divested, but action will be deferred upon said cross-bill until it may be finally determined whether or not the complainants establish a superior equity to all of the land.
Reversed and remanded.
All the Justices concur.