Christian v. Rabren

273 So. 2d 459, 290 Ala. 45, 1973 Ala. LEXIS 1274

• Court: Supreme Court of Alabama
• Decided: February 8, 1973
• Docket: SC 56
• Status: Published

Opinions

JONES, Justice.

The respondents, Theresa R. Christian and her husband, J. M. Christian, appeal from a decree granting to the vendee specific performance of an alleged contract for the sale of land.

The pertinent facts are as follows:

W. J. Franklin was the owner of some 167 acres of land situated in Covington County, Alabama, of which he deeded 40 acres (sometimes referred to as 38 acres, more or less) to his daughter, Theresa Christian. The remaining 127 acres (or the remaining 86 acres as hereinafter discussed) passed at his death, intestate, to his three children, Wilbur Franklin, Mrs. Theresa Christian and Mrs. Athy Schlimer, as tenants in common, subject to his widow’s right to dower and homestead. The appellee, Tom Rabren, wanting to buy the 127-acre tract and willing to take title subject to the widow’s life interest, had his attorney draw up an option agreement between Rabren and the three children of W. J. Franklin and their spouses. However, Mrs. Schlimer and her husband lived in New York and had never expressed any desire to become a party to the option agreement. On March 25, 1969, the option agreement was presented to Mr. ad Mrs. Wilbur Franklin and Mr. and Mrs. Christian for their signatures. In the acknowledgement section of the agreement the notary, Albert Elmore, had crossed through the Schlimer’s names before it was signed by the Franklins or the Christians.

The option agreement provided that, for the consideration paid ($5.00), Rabren could purchase the described 127 acres at any time within twelve months for $9,200.-00. Within the said twelve-month period Rabren notified the Franklins and the Christians in writing and orally that he intended to exercise his option and purchase their respective interests in the property. Rabren had been in correspondence with the Schlimers and their decision not to sell remained unchanged. Rabren concluded that he must settle for a two-thirds interest. The Franklins readily signed a deed conveying their one-third interest in the property to Rabren for $2,076.61, being the agreed value of his interest, rather than one-third of the option purchase price of $9,200.00. This was explained (though somewhat vaguely) by Rabren and Franklin to the general effect that Rabren learned for the first time after the execution of the option on March 25, but before the date of trial, that the widow, in addition to her life interest, was the fee owner of 41 acres of the 127-acre tract, the subject of the option.

The Christians, however, refused to convey their interest even upon tender of a certified check for $3,066.67, being exactly one-third of the agreed price for the whole 127 acres. The Christians claimed the option was void and not binding on them. Hence, Rabren commenced this action seeking specific performance of the option agreement.

At the trial below, Mrs. Christian testified that it had been her understanding that when the land was sold to Rabren, the money ($9,200.00) would be placed in a trust fund to provide for their mother. When she learned that Wilbur Franklin intended to keep his share for himself and that her sister, Athy Schlimer, would not sell at all, Mrs. Christian refused to honor the option agreement. Rabren testified, on the other hand, that he knew nothing about any proposed trust agreement, and Wilbur Franklin said the only reason he knew why his sister (Mrs. Christian) had refused to sell was that she had changed her mind. There was no mention of any trust fund in the option agreement signed by the Christians.

After a hearing ore tenus, the trial court in its final decree filed January 28, 1972, found as follows:

“ . . . that the respondents executed for consideration Exhibit ‘A’ . . . whereby the respondents agreed to sell and convey to the complainant the lands made the subject of the suit . . .

“ . . . that within the term of said option the complainant notified the respondents of his decision to exercise said option, tendered to the respondents the sum required for the exercise thereof and requested and demanded that the respondents execute a deed as required by said option. The Court further finds that the respondents without just cause failed and refused ... to execute conveyance of their interest within thirty days after said option was exercised by the complainant . . . ”

The court decreed that respondents (Christians) specifically perform the option within twenty days by “ . . . executing and delivering to the Register of this Court for delivery to the complainant a warranty deed conveying their undivided one-third interest to complainant in the lands . . . ” [Emphasis ours.]

The court further decreed that should the Christians fail to comply with the decree within the time allowed, Rabren is the rightful owner of all the interest of the Christians in the land, and the register is directed to execute and deliver a deed conveying said property to Rabren.

On February 25, 1972, the Christians filed application for rehearing, setting forth, among other grounds, that the testimony established that the widow of W. J. Franklin has “complete ownership of forty acres” of the land involved in the 127-acre tract, and attached thereto a copy of a 1925 deed by which 41 acres, more or less, was conveyed by W. J. Franklin to his wife, L. B. Franklin.

After a hearing, the court on April 11, 1972, rendered a decree as follows:

“ . . . the Court . . . is of the opinion that the decree entered in this cause on the 28th day of January, 1972, . should be amended to require the Respondents [Christians] to deliver to the Complainant [Rabren] a warranty deed conveying their interest in the property hereinafter described and as described in the original decree within twenty days from the date of this amended decree and failing therein that the Register . . . present to the Covington County Bank a certified check which was introduced in this cause payable to the Respondents . . . endorse the same . . . and upon receipt of $3,066.67, execute a Register’s deed conveying to the Complainant all interest of the Respondents in and to the lands ... or any interest which they might hereafter acquire in said lands. [Emphasis ours.]

“IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that within twenty days from the date of this decree that the Respondents execute a warranty deed to the Complainant conveying the following described lands to-wit:

“and deliver the same to the Register of this Court for delivery to the Complainant and the Register is hereby directed to deliver to the Respondents the certified check which was introduced in the evidence in this cause.”

The appellants, Mr. and Mrs. Christian, assign error as follows:

“1. The Court erred in overruling the demurrer of the Appellants filed April 27, 1971 to the bill of complaint as amended.

“2. The Court erred in its decree on the application for rehearing by ordering the Appellants to execute a warranty deed to the lands described in the decree and, without specifying the limited, undivided interest of Appellants, and in the same decree the Court also erred in ordering the Register to convey any after acquired interest of Appellants in the described lands, in the event the Appellants failed to deliver a deed to the Register conveying the whole interest in the whole tract.

“3. The Court erred in decreeing specific performance on an instrument that is unenforceable on its face.

“4. The Court erred in ordering specific performance on an alleged option which the Appellee himself acknowledged was incorrect and that he subtracted 41 acres from the original option, for the purpose of computing the value of the land but did not eliminate the 41 acres from the tract description in the instrument executed March 25, 1969.”

In addressing ourselves to appellants’ first assignment of error, a brief recital of the pleadings may be helpful.

The portions of the original bill here pertinent are:

“ . . . Respondents executed an option to sell certain real estate, a copy of said option is attached hereto and made Exhibit ‘A’ .

“ . . . Complainant has notified the Respondents of his decision to exercise said option . . . has demanded that the Respondents execute a deed as required by said option; . . . has tendered the money to the Respondents; that your Respondents have failed and refused to comply with the terms of said option.

“ . . . Complainant has been, and is now ready to comply . . . [and] offers to do equity.

“The PREMISES CONSIDERED, your Complainant prays .

“ . . . that the Court enter an order directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate.

“Complainant prays for such other general and special relief ...”

The trial court sustained respondents’ demurrer to the original bill, and complainant within the time allowed amended his complaint by adding the following averment and prayer:

“ . . . that the Respondents own an undetermined interest in said property .

“. . . prays that this Court will determine the interest in said property of the Respondents and will abate the purchase price to be commensurate with the interest of the Respondents.”

The court overruled respondents’ demurrer to the amended bill, and this ruling is assigned as error.

After a careful review of appellee’s bill as amended, with the option agreement incorporated therein by reference, we are at the conclusion that appellants’ demurrer to said bill was properly overruled by the trial court. Our decisions have followed the rule that a complainant’s right to equitable relief must be shown with sufficient certainty to enable the court to see plainly that the complainant has such a right as warrants the court’s protection; and, too, the averments of the bill must inform the respondent of the nature of the case which he is called upon to defend. Swann v. Reconstruction Finance Corp., 241 Ala. 286, 2 So.2d 770; Adler v. First National Bank of Birmingham, 233 Ala. 325, 171 So. 904. The same precision of statement is not generally required in equity as at law, and the certainty with which averments must be made will always depend on the particular circumstances of each case. Fuqua v. Roberts, 269 Ala. 59, 110 So.2d 886.

When, as here, a bill shows a contract of sale and an agreement to convey which is at least definite enough to be performed, it is not necessary that said bill should negate any other conditions or terms. If such are asserted by the respondents, these are defensive matters available only by plea or answer. A complaintant is only required to show in his bill affirmatively a right to relief; he is not required, nor would it be proper, to anticipate and negate all possible defenses. McKenzie v. Sutton, 250 Ala. 447, 34 So.2d 825; Penney v. Norton, 202 Ala. 690, 81 So. 666. Appellants’ demurrer to the bill as amended was without merit and properly overruled.

The appellants’ second assignment of error takes the following points: (1) The trial court erred in requiring the appellants to convey all of their interest in the subject real property without specifying the extent of their interest, and (2) in ordering the appellants to convey any “after acquired” interest in the property.

Though the Christians admitted in their answer that they owned an undivided one-third interest in the 127-acre tract described in the option contract, the deed attached to appellants’ application for rehearing indicates that, in fact, the appellants own only a one-third interest in some 86 acres. The decree on application for rehearing shows that the trial court recognized that the extent of Christians’ interest in the 127-acre tract was in doubt. Rabren’s bill as amended averred that the Christians owned an undetermined interest and prayed that the court determine Christians’ interest in said land and abate the purchase price commensurate therewith. Consequently, the trial court did err in ordering the Christians to convey their interest without first determining the extent of that interest. The trial court should have made a determination as to the extent of appellant’s interest in the 127-acre tract described in the option agreement. Having so done, the court should have ordered an abatement of the purchase price if appropriate.

On the second point raised in this assignment, we agree with the appellants that the trial court erred in ordering them to convey any “after acquired” interest in subject property to the complainant. The record does not reveal the trial court’s reason or authority for such order. We can find no basis in law or fact to support this aspect of the trial court’s decree. The only interest the Chrsitians may be required to convey is that which they owned on March 25, 1969, the day the option contract was executed, plus any interest which they may have acquired after March 25, 1969, but prior to the date of the final determination of this cause on rehearing. Enslen v. Allen, 160 Ala. 529, 49 So. 430; Kent v. Dean, 128 Ala. 600, 30 So. 543; 5A A. Corbin, Corbin on Contracts § 1170. See also Pickard v. Osburn, 261 Ala. 206, 73 So.2d 542.

Appellants’ third assignment of error contends that the trial court erred in ordering the specific performance of an instrument unenforceable on its face. Appellants argue in brief in support of this assignment that there was never a meeting of minds, ambiguity in the consideration and purchase price, and that the dower interest of the widow is not provided for in the option agreement. We agree that the option is not an example of expert draftsmanship, but find that it is sufficiently certain in its terms to be enforceable.

The testimony revealed, and the trier of fact evidently concluded, that the Schlimers’ names had been crossed out in the acknowledgement section of the option prior to its execution by the Christians. Where tenants in common start out to convey all their interests together and the final effect of their action is to leave one or more not bound, it does not follow that the transaction is still in fieri and not binding on the others. Pearce v. Third Ave. Improvement Co., 221 Ala. 209, 128 So. 396.

In the Pearce case, supra, this court cited with favor the Texas case of Ward v. Walker (Tex.Civ.App.), 159 S.W. 320, which was said to be typical of cases holding contracts by tenants in common, not enforceable as to all interests, the proper subject of specific performance as to the interest of those who have properly executed the contract at the option of the vendee and adopting the followig language from that decision:

“We are unable to see anything unconscionable, inequitable, or unjust in requiring the appellees to perform, so far as théy are able, the contract which they have deliberately made. The legal effect of the contract was that each of them for sufficient consideration bound himself to sell and convey the land, so far as he was able; that is, his undivided interest.”

We think the rule adopted by the Pearce case, supra, as set out above is controlling in the instant case. Specific performance pro tanto at the election of the vendee where full performance cannot be had has been a recognized remedy in equity from the earliest history of this jurisdiction. Saliba v. Brackin, 260 Ala. 103, 69 So.2d 267; Milton Realty Co. v. Wilson, 214 Ala. 143, 107 So. 92; McCreary v. Stallworth, 212 Ala. 238, 102 So. 52; Bass v. Gilliland’s Heirs, 5 Ala. 761.

Appellants insist the option is unenforceable because the Christians signed on a condition (the Schlimers would sign and a trust would be established for the mother) that was never met. If this were the case, the complainant would not be entitled to specific performance for the reason that no binding contract can come into being until there is a meeting of the minds. Jones v. McGivern, 274 Ala. 232, 147 So.2d 813; Obermark v. Clark, 216 Ala. 564, 114 So. 135, 55 A.L.R. 1153. However, the evidence at trial was in conflict on this point. Consequently, an issue of fact was presented, and the trial court found that such condition was not involved. We hold, therefore, that the option contract, which is the subject of this cause, was enforceable by the complainant at least to the extent the appellants are able to convey.

We pretermit any further consideration of appellants’ fourth assignment of error since it appears that this assignment raises essentially the same point already disposed of under our treatment of assignment of error number two, which necessitates a reversal in part of the decree.

In summary, we hold that the trial court’s decree must be set aside as to that aspect discussed under assignment of error number two, and the cause remanded for a determination of the extent of the interests of respondents in the subject property with abatement of the purchase price commensurate with such determination.

Affirmed in part, reversed in part and remanded.

HEFLIN, C. J., and MERRILL, BLOODWORTH, MADDOX and McCALL, JJ., concur. COLEMAN and FAULKNER, JJ., dissent.