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[Phillips v. Adams.]

has ever been paid; that the purchaser was placed in possession, and continued in possession until his death; and the lands are particularly described. On these facts, the vendor was a mortgagee, and might file his bill at any time within twenty years. Hudspeth v. Driver, 16 Ala. 348; Relfe v. Relfe, 34 Ala. 500; Bizzell v. Nix, 60 Ala. 281. The statute of frauds has nothing to do with the case. When possession is taken under the contract, and a bond for titles executed, the case is taken out of the statute.-Danforth v. Laney, 28 Ala. 276. In Relfe v. Relfe, supra, the contract was verbal merely, not even a bond for titles being given. If a promissory note for the payment of the purchase-money were necessary to the validity of the contract, it would be equally necessary to express therein the consideration; and such a note, constituting an equitable mortgage, would destroy and displace a mere vendor's lien.-Bryant v. Stephens, 58 Ala. 636. If the statute of frauds applies to the case, it should be set up by plea or answer, and is not available on demurrer.-Rigby v. Norwood, 34 Ala. 129; Martin v. Wharton, 38 Ala. 641; Patterson v. Ware, 10 Ala. 444; Browne on Statute of Frauds, § 505.

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SOMERVILLE, J.-The bill in this case was filed by the a pellees, to enforce a vendor's lien for unpaid purchase-money. A bond for title, which is very inartificially drawn, was executed by the vendor, on the faith of which the purchaser went into possession. No part of the purchase-money is alleged to have been paid. The appellant holds possession of the land in question as the privy in estate of the said vendee, being his sole devisee. As defendant in the suit below, she set up the defense of the statute of frauds, by demurrer to the bill; and this demurrer was overruled by the chancellor.

It may be that the more common practice is to specially urge the defense of the statute of frauds by formal plea, or by ansurer, in order to entitle the defendant to rely upon it, as a defense, at the hearing.-Story's Eq. Plead. (8th ed.), § 761 a. The recognized office of a demurrer, however, would seem, on the clearest principles, to have ample scope for the exercise of its appropriate functions in cases of this character, when the defect arises from the case made by the complainant, and is apparent on the face of the bill. And whatever the earlier English practice may have been, as indicated by some of the adjudications, the appropriateness of a demurrer, for such a purpose, has been settled by this court in various decisions, and is sustained by the current of modern authority, in all cases where the bill avers the existence of a writing which affirmatively appears on the face of it to be so defective as not to conform to the requirements of the statute, or where it pre

[Phillips v. Adams.]

sents a mere oral agreement which is void under the provisions of the statute because not in writing.-Bolling v. Munchus, 65 Ala. 558; Bercy v. Lavretta, 63 Ala. 374; Browne on Statute Frauds (4th ed.), 509-10, 513; Meach v. Perry, 6 Amer. Dec. 719; Redding v. Wilkes, 3 Bro. Ch. 558; Waterman on Specific Perf. $ 89, 102; Fry on Specific Perf. § 332.

There can be no doubt of the proposition, certainly under our own decisions, that, where a promise or agreement is of a character required by the statue of frauds to be in writing, it is sufficient to allege in the pleadings a contract generally, without stating that it is in writing. The writing is matter of proof, and not of allegation, and the failure to aver its existence is not a legal cause for demurrer.-Martin v. Wharton, 38 Ala. 637; Browne Stat. Fr. § 505; Price v. Weaver, 13 Gray, 273. The rule, however, seems to be otherwise in the English Chancery Courts, where, in bills for specific performance of agreements relating to land, it is necessary to allege that the agreement is in writing, or the bill will be demurrable.-Daniel's Ch. Prac. (5th Lond. Ed. 1871), p. 306.

The demurrer to the bill, we think, was well taken, and should not have been overruled. The instrument purporting to be a bond for title was defective, as failing to comply with the statute of frauds. Being a contract for the sale of lands, the consideration, or price of the lands, should have been expressed in the writing. The bond contains no recital that any consideration whatever was to be paid. It was long a mooted question, under the English Statute of Frauds, whether it was necessary that such agreements, or the note or memorandum thereof required to be in writing, should express the consideration; and though settled affirmatively in the well known case of Wain v. Warlters, 5 East Rep. 10, the doctrine there declared was afterwards doubted by Lord Eldon, and has been the subject of much discussion in this country, accompanied by great contrariety of opinion.-Browne Stat. Frauds, 390-1; Sears v. Brink, 3 Amer. Dec. 475.

The old statute, as found in Clay's Digest, 254, § 1, contained no such requirement as the present one embodied in section 2121 of the Code of 1876, which is the same in phraseology with the sections contained in the Codes of 1852, and 1867.

The present statute is free from ambiguity of language, or doubtfulness of meaning. It declares that every contract or agreement for the sale of lands, or any interest therein, except leases for a term not longer than one year, shall be void, "unless such agreement, or some note or memorandum thereof, expressing the consideration, is in writing, and subscribed by the party to be charged therewith, or some other person by him thereunto lawfully authorized in writing" (Code, § 2121); or

[Phillips v. Adams.]

unless the purchase-money, or a portion thereof, be paid, and the purchaser put in possession of the land by the seller."-Ib. sub-div. 5. In this respect, it differs from both the English statute, and from the statute of 1803, as contained in Clay's Digest; and, as decided by this court more than twenty years ago, in Rigby v. Norwood, 34 Ala. 129, unless the consideration is now expressly set out in the writing, it would be void as a note, memorandum or agreement, under the Statute of Frauds.

This was a legislative adoption, in other words, of the doc trine declared in Wain v. Warlters, supra, with which the weight of authority in this country has always concurred.

Wherever the principle of this case has prevailed, it is well settled that an agreement for the sale of lands is void under the Statute of Frauds, unless the price and other terms are specified in the writing; or unless the given case is, for some reason, excepted from the operation of the statute; as, for example, where the purchaser has been put in possessson, having paid the whole or a part of the purchase-money. As said by Mr. Justice Bayley, in Saunders v. Wakefield, 4 Barn. & Ald. 601, "it would be a very insufficient agreement to say, 'I agree to sell A. B. my lands, without specifying the terms or price."" Browne St. Fr. 381-4. The point was similarly ruled in Carter v. Shorter, 57 Ala. 253; and Adams v. McMillan, ī Port. 73; and is based upon the well settled rule, that a written memorandum or agreement, to take a contract out of the Statute of Frauds, must express all the essential terms of the contract with such certainty as to render a resort to oral evidence unnecessary to ascertain the intention of the parties. Jenkins v. Harrisen, 66 Ala. 345; Browne on Stat. Frauds, 371; Holmes v. Evans, 12 Amer. Rep. 372; Sears v. Brink, 3 Amer. Dec. 475; 7 Wait's Act. & Def. p. 36; 3 Parsons Contr. 17; 1 Greenl. Ev. § 268.

The other point raised by the demurrer is, that the bill fails to aver a written promise by the vendee to pay the purchasemoney to the vendor, but shows that such promise was only oral. Whether the requirement of the statute, that the written agreement shall be "subscribed by the party to be charged therewith," does not mean a written signature by the defendant who is sought to be charged by suit, or against whom the writing is sought to be enforced, need not be here decided, as the determination of this point is not necessary to the decision of the case.

The bond for title described in the bill is of no legal validity. as being offensive to the Statute of Frauds on the ground above discussed. The chancellor erred in not sustaining the demurrer to the bill for this reason; and his decree is accordingly reversed, and the cause is remanded.

[McKay v. Broad et al.]

McKay v. Broad et al.

Bill in Equity by Administator and Heirs of Deceased Purchaser, for Specific Performance, Injunction of Waste, &c.

1. Parties to bill; when administrator and heirs may join.—When the purchase-money is unpaid, or when the fact of payment is controverted, the administrator of the deceased purchaser may be a proper party to a bill which seeks to compel a specific performance of the contract by the vendor; but, when the purchase-money has been paid in full, and the bill affirmatively shows that there can be no necessity for the exercise by the administrator of his statutory powers over the real estate, he can not join with the heir in a bill to compel a conveyance of the legal title.

2. Same.-Nor is the administrator a proper party to the bill, because it also seeks to stay the commission of waste on the lands, and to recover damages for trespasses irremediable at law; since, if damages should be recovered, he and the heir would have no common right in or to them. 3. Amendment by change of parties.-When a bill is improperly filed in the name of an administrator as sole plaintiff, and the heirs are brought in by amendment, the name of the administrator can not be struck out by a second amendment, since this would work an entire change of parties.

APPEAL from the Chancery Court of Madison.
Heard before the Hon. II. C. SPEAKE.

WALKER & SHELBY, for appellants.

HUMES & GORDON, contra, cited Parkman v. Aicardi & Toole, 34 Ala. 393.

BRICKELL, C. J.-The original bill was filed by Broad, as administrator of Simeon Lemley, deceased, to enforce specific performance of a contract for the purchase of lands, into which the intestate had entered with one Studdart, and of which there had been by the intestate full performance during his life; and to restrain the appellants, John T. and Daniel R. McKay, from trespassing and committing waste upon the lands. On a motion to dismiss the bill for want of equity, the chancellor required that it should be amended, by joining the heirs of the intestate as complainants; and an amendment was thereupon made, joining as complainants all the heirs, except one, who claimed adversely to the intestate. To the bill as amended, a demurrer was interposed, because of a misjoinder of complainants, and because the bill did not show any cause of action for which the personal representative was entitled to sue. The overruling of

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* [McKay v. Broad et al.]

this demurrer is the assignment of error to which the argument of counsel is mainly addressed, and is the only question we deem it necessary to consider.

The contract for the purchase of the lands was made by the intestate, thirteen years prior to his death; and he was immediately let into possession, which he retained undisturbed. The obligation of the vendor was to make title on the payment of the purchase-money, which was fully paid by the intestate during his life. If the contract had not been fully performed by the intestate in his life-time-if any part of the purchasemoney had been unpaid-it may be that the administrator of the intestate would have been a proper party to a bill to enforce specific performance of the contract. The unpaid purchase-money being a debt chargeable on the personal assets, he would have had an interest in disputing the contract; or, if it was not disputed, in controverting the fact that the purchasemoney was unpaid. The heir would also have been a necessary party, for to him title would have to be made.-Fry on Specific Perf. § 118. But, the purchase-money having been fully paid, the contract fully performed by the intestate, the vendor retaining the naked legal title as a mere trustee for the heir, the personal representative would not be a necessary, or a proper party, to a bill to compel the vendor to a specific performance of the contract,-to a conveyance of the title to the heir, which, of itself, would be full performance. It is only persons who have a right or interest, legal or equitable, in the subject-matter of controversy which may be affected by the decree, who can be made parties to a suit in equity. Persons as to whom no decree can be rendered on a hearing, ought not be made parties.

In a court of equity, money agreed to be laid out in land, is considered as land; and land agreed to be converted into money, is regarded as money. When there is an executory contract for the sale of lands, the title to be conveyed on the payment of the purchase-money, the vendor, in the contemplation of a court of equity, is a trustee of the title for the vendee, and the vendce is a trustee of the purchase-money for the vendor. To the heirs, on the death of the vendee, the lands descend, charged with the trust to which they were subject in the life of the ancestor. By the common law, an executor, or administrator, represented the personal estate only. He was without authority over, or right to the lands of the testator, or intestate, or to enter into possession of them. Of consequence, for injuries to the lands, or for rents and profits accruing, subsequent to the death of the testator or intestate, the devisee, or the heir, only could sue.-State ex rel. Nabors, 7 Ala. 459; Jordan v. Abercrombie, 15 Ala. 580; Ec parte Swann, 23 Ala. 192.

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