Opinion
8 Div. 75.
November 2, 1961.
Appeal from the Circuit Court, Lawrence County, Jas. N. Bloodworth, J.
H. Neil Taylor, Russellville, for appellants.
The statute of frauds is not applicable to executed agreements. Stearnes v. Woodall, 218 Ala. 128, 117 So. 643.
Compliance with two requisites of the exception of § 3(5), Tit. 20, of the Code renders unnecessary an allegation that the contract was not reduced to writing. Nelson v. Hammonds, 173 Ala. 14, 55 So. 301.
Defense of the statute of frauds cannot be presented by demurrer unless it affirmatively appears on the face of the pleadings that the contract was oral or was otherwise void under the statute of frauds. Neely v. Denton, 260 Ala. 26, 68 So.2d 537; Johnson v. Maness, 232 Ala. 411, 168 So. 452; Irvin v. Irvin, 207 Ala. 493, 93 So. 517.
Thos. C. Pettus, Moulton, for appellee.
A demurrer is a single entity and if any ground is good the demurrer should be sustained. Opelika Montgomery Fair Co. v. Wright, 255 Ala. 499, 52 So.2d 412; Liberty Natl. Life Ins. Co. v. Weldon, 267 Ala. 171, 100 So.2d 696.
The cross-bill fails to contain a clear and orderly statement of the facts on which the suit is founded, without prolixity or repetition, but instead pleads matters of evidence and inferences and conclusions drawn by the pleader, and fails to describe with certainty the substance of the contract relied on, and is too uncertain to invite joinder of issue. Equity Rule 11; Berman v. Wreck-A-Pair Bldg. Co., 234 Ala. 293, 175 So. 269; Id., 236 Ala. 301, 182 So. 54; Montgomery v. Drinkard Auto Truck Co., 257 Ala. 685, 60 So.2d 823; Alabama Power Co. v. Haygood, 266 Ala. 194, 95 So.2d 98; News Employees' Benevolent Soc. v. Agricola, 240 Ala. 668, 200 So. 748.
Allegations of fraud in a pleading must set forth the facts constituting the fraud, and to be sufficient must do this with reasonable certainty. Zuckerman v. Cochran, 229 Ala. 484, 158 So. 324; Hyman v. Langston, 210 Ala. 509, 98 So. 564; Steiner Bros. v. Slifkin, 237 Ala. 226, 186 So. 156.
The general rule of equity pleading requires that the purported agreement, vital to the cross-complainants' relief, be attached to the cross-bill or substantially set forth therein. Gen. Motors Accept. Corp. v. Kendrick, 270 Ala. 25, 115 So.2d 487; McKenzie v. North River Ins. Co., 257 Ala. 265, 58 So.2d 581; Roney v. Dothan Produce Co., 217 Ala. 475, 117 So. 36.
Appellee filed a statutory bill to quiet title to a certain tract of land in Lawrence County. The appellants interposed an answer and cross-bill. Appellee's demurrer to the cross-bill was sustained. The appeal is from the decree sustaining that demurrer.
The cross-bill is somewhat difficult to decipher, but if we have interpreted it correctly, its averments seek to have set aside the deed made to appellee of the tract of land, title to which his bill seeks to have quieted. The cross-bill seemingly avers an agreement made between the parties to this suit whereby they executed to their mother a deed to the property with the understanding and agreement that it would be held by their mother until her death and thereafter divided between the parties, but that the appellee by fraud obtained a deed to the property from his mother. Hence, appellants' prayer to have the deed set aside.
If we have interpreted the cross-bill correctly, it was subject to at least two grounds of the demurrer and the court was correct in so ruling.
First, the fraud alleged in the cross-bill is not sufficiently stated to apprise the court of the exact nature of the fraud. Allegations of fraud must set forth the facts constituting the fraud with reasonable certainty. Lacey v. Edmunds Motor Co., 269 Ala. 398(4), 113 So.2d 507; Steiner Bros. v. Slifkin, 237 Ala. 226(3), 186 So. 156.
Second, the agreement which is alleged as having been made between the parties is not shown to have been in writing and is not set forth with sufficient clearness to inform the court of its exact character and for this reason the cross-bill was also subject to the demurrer interposed. Alabama Power Co. v. Haygood, 266 Ala. 194, 95 So.2d 98; Montgomery v. Drinkard, 257 Ala. 685, 60 So.2d 823; Equity Rule 11, Title 7, Code 1940.
For the information of the parties, it is proper to observe that § 755 of Title 7, Code of 1940 authorizing appeals from interlocutory decrees in equity cases was repealed at the 1961 Special Session of the legislature, but the act does not affect this appeal. Act No. 72.
Affirmed.
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.