Ellerbe v. Ellerbe

Supreme Court of Alabama

Ellerbe v. Ellerbe

42 Ala. 643

CourtSupreme Court of Alabama

DecidedJune 15, 1868

StatusPublished

Cited by1 cases

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Bluebook

Ellerbe v. Ellerbe, 42 Ala. 643 (Ala. 1868).

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Opinion

BYRD, J.

I. The appellants seek to enforce the specific performance of a parol contract of sale of land. No agreement, note, or memorandum thereof, expressing the consideration in writing and signed by the decedent, is relied on as a ground of the relief sought. Neither is there any allegation that the purchase-money, or a portion thereof, has been paid. The evidence shows that the appellants were put in possession, and that the land was in part an advancement to them, and that they gave their notes for the balance of the valuation. They do not rely for relief on the consideration as thus proven, but on their right as purchasers for a valuable consideration. — Revised Code, § 1862.

[645]*645The parol contract, as set up in the bill, is denied by the answers, and the evidence sustains the contract as set up in the answer of Mrs. Ellerbe. The answers do not insist on the statute of frauds and perjuries, as a bar to the relief sought. But we think that the appellants have failed to prove the case made by the bill, and that the chancellor correctly dismissed it on the ground of variance between the allegations and proof. This rule is very strictly enforced in cases for the specific performance of contracts for sale of land. Besides, it has been said, that it is a matter of discretion on the part of the court to enforce the specific performance of contracts, and it is not a matter of right in either party. I speak not of a discretion unregulated by any legal rules, but of a sound and reasonable discretion, governed by well defined general rules and principles.— 2 Story Eq. 742.

We think that the chancellor exercised such a discretion in the dismissal of the bill. No fraud is alleged, and no injury set up as a ground of relief. Such allegations may not be necessary in all cases of this kind, but when omitted, or not proven if made, the court could very properly consider the omission or failure of proof, in making up an opinion on the propriety of granting the relief in such a case as is made by the record before us. — See 2 Story Eq. Ju., from § 755 to 760 ; §§ 769 and 771 ; Gentry v. Rogers, 40 Ala. 442.

Decree affirmed.

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BYRD, J.

I. The appellants seek to enforce the specific performance of a parol contract of sale of land. No agreement, note, or memorandum thereof, expressing the consideration in writing and signed by the decedent, is relied on as a ground of the relief sought. Neither is there any allegation that the purchase-money, or a portion thereof, has been paid. The evidence shows that the appellants were put in possession, and that the land was in part an advancement to them, and that they gave their notes for the balance of the valuation. They do not rely for relief on the consideration as thus proven, but on their right as purchasers for a valuable consideration. — Revised Code, § 1862.

[645]*645The parol contract, as set up in the bill, is denied by the answers, and the evidence sustains the contract as set up in the answer of Mrs. Ellerbe. The answers do not insist on the statute of frauds and perjuries, as a bar to the relief sought. But we think that the appellants have failed to prove the case made by the bill, and that the chancellor correctly dismissed it on the ground of variance between the allegations and proof. This rule is very strictly enforced in cases for the specific performance of contracts for sale of land. Besides, it has been said, that it is a matter of discretion on the part of the court to enforce the specific performance of contracts, and it is not a matter of right in either party. I speak not of a discretion unregulated by any legal rules, but of a sound and reasonable discretion, governed by well defined general rules and principles.— 2 Story Eq. 742.

We think that the chancellor exercised such a discretion in the dismissal of the bill. No fraud is alleged, and no injury set up as a ground of relief. Such allegations may not be necessary in all cases of this kind, but when omitted, or not proven if made, the court could very properly consider the omission or failure of proof, in making up an opinion on the propriety of granting the relief in such a case as is made by the record before us. — See 2 Story Eq. Ju., from § 755 to 760 ; §§ 769 and 771 ; Gentry v. Rogers, 40 Ala. 442.

Decree affirmed.

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42 Ala. 643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellerbe-v-ellerbe-ala-1868.

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