Summary
In West v. McKay, 225 Ala. 397, 143 So. 573, this court, in discussing the question of specific performance of an oral contract as to the sale of lands owned by tenants in common, recognized the rule that ordinarily the question of possession is insufficient to meet the requirements of the statute of frauds for the reason that possession is referable to the previous status and right and likewise because the possession cannot in strictness be regarded as exclusive.
Summary of this case from Stacey v. StaceyOpinion
8 Div. 389.
October 6, 1932.
Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.
Lynne Lynne, of Decatur, for appellant.
A verbal contract for the sale of land is taken out of the operation of the statute of frauds when a part of the purchase money is paid at the time and the purchaser is put in possession or, being already in possession under different and distinct contract with the seller, retains possession as purchaser. Franke v. Riggs, 93 Ala. 252, 9 So. 359; Formby v. Williams, 203 Ala. 14, 81 So. 682. Where the purchaser is in possession of the land at the time of purchase and continues to occupy it following the sale, the terms on which he continues to occupy are matters of evidence rather than of law. Crommelin v. Thiess, 31 Ala. 412, 70 Am. Dec. 499. As between plaintiff and defendant, there was no need of, and indeed there could not be, a visible change of possession. McMahan v. Jacoway, 105 Ala. 585, 17 So. 39.
H. A. Harris and Norman W. Harris, both of Decatur, for appellee.
The possession of the purchaser to satisfy the statute of frauds must be solely and exclusively referable to the contract of sale, and must not be such that it is capable of being explained in connection with any other relation of the vendee to the land. Linn v. McLean, 85 Ala. 250, 4 So. 778; McKinnon v. Mixon, 128 Ala. 612, 29 So. 690; Trammell v. Craddock, 93 Ala. 450, 9 So. 587; Formby v. Williams, 203 Ala. 14, 81 So. 682; Jones v. Jones, 219 Ala. 62, 121 So. 78.
In order that "the purchaser be put in possession of the land by the seller," in compliance with section 8034, subd. 5, Code, the possession of the purchaser "must refer exclusively to the contract sought to be enforced and be such as would not be done but for" it. Formby v. Williams, 203 Ala. 14, 81 So. 682, 683; Jones v. Jones, 219 Ala. 62, 121 So. 78; Hagood v. Spinks, 219 Ala. 503, 122 So. 815.
So that from this general rule it follows that the possession of a tenant in common who has contracted orally to buy from his cotenant is ordinarily not sufficient as an act of part performance of the contract. 58 Corpus Juris, 1010, § 206, note 63.
In this case the purchaser was the husband of a tenant in common with the seller, and at the time of and before the contract of sale he and his wife (the tenant in common) had resided upon the land. He had a contract with the seller to look after it for the joint owners. After the sale there was no change in his possession, and it was not referable solely to his contract of purchase, but as well to his domestic relations with his wife who, as a tenant in common, had the right to its occupancy referable to such ownership. Where the purchaser's possession is referable to domestic or family relationship, as well as to the contract of purchase, it cannot be said to be referable solely to such contract within the requirements of the rule. Jones v. Jones, supra: 58 Corpus Juris, 1007, note 31; Trammell v. Craddock, 93 Ala. 450, 9 So. 587.
We do not here have a case where one already in possession, such as a tenant, merely remained in such possession after his contract of purchase, without other claim of right than under such contract. When a tenant thus remains in possession claiming solely as a purchaser, and his acts and conduct clearly show such intention, this may be a sufficient delivery of possession (usually a question of fact in each case), though he theretofore had been in possession. But it should clearly appear, by his visible acts and conduct, that he was relying solely on his contract of purchase for possession. Danforth v. Laney, 28 Ala. 274; Eason v. Roe, 185 Ala. 71, 64 So. 55; 58 Corpus Juris, 1008, 1009; Franke v. Riggs, 93 Ala. 252, 9 So. 359; McMahan v. Jacoway, 105 Ala. 585, 17 So. 39; Linn v. McLean, 85 Ala. 250, 4 So. 777; Formby v. Williams, supra.
In this case it appears without dispute that defendant's possession and conduct were as well due to his domestic and family relations as to his contract of purchase. The contract is not claimed to be evidenced by a writing of defendant sufficient under the statute of frauds.
The affirmative charge was requested by defendant and refused, but we think it was due him. There was therefore no ruling of the court assigned for error which was prejudicial to appellant. Moody v. Walker, 89 Ala. 619, 7 So. 246; Stephens v. Regenstein, 89 Ala. 561, 8 So. 68, 18 Am. St. Rep. 156.
Affirmed.
ANDERSON, C. J, and GARDNER and BOULDIN, JJ., concur.