Mullinax v. Galen-Marshall, Inc.

642 So. 2d 431, 1994 Ala. LEXIS 309, 1994 WL 195470
CourtSupreme Court of Alabama
DecidedMay 20, 1994
Docket1921324
StatusPublished
Cited by3 cases

This text of 642 So. 2d 431 (Mullinax v. Galen-Marshall, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullinax v. Galen-Marshall, Inc., 642 So. 2d 431, 1994 Ala. LEXIS 309, 1994 WL 195470 (Ala. 1994).

Opinion

COOK, Justice.

Henry and Lona Mullinax appeal from a summary judgment entered in favor of Galen-Marshall, Inc., and Louellen Jeong in the Mullinaxes’ action seeking specific performance of a contract to sell real estate. We affirm.

The evidence suggests that in April 1992, Louellen Jeong, president of Galen-Marshall, visited Henry Mullinax, the owner and operator of “Mullinax Auto Sales,” with the intention of borrowing money. She offered to use a parcel of real estate owned by Galen-Marshall as collateral for the loan. In connection with this proposal, she gave Mullinax a copy of Galen-Marshall’s deed, which described in metes and bounds three parcels of real estate. Also, she presented Mullinax a survey map on which she outlined the dimensions of the property she was offering as collateral. The outlined parcel corresponded [432]*432approximately, but with significant differences, to property designated as “parcel two” in the Galen-Marshall deed.

During subsequent discussions, Mullinax offered to purchase from Jeong a parcel of real estate. On April 16, 1992, the parties executed a document by which Henry and Lona Mullinax agreed to purchase real estate from Jeong and Galen-Marshall. The document did not describe the real estate, stating only: “SEE LEGAL DESCRIPTION.” At that time, Henry Mullinax gave Jeong $1000 in earnest money.

Before the date set for the closing of the sale and delivery of the deed, the Mullinaxes’ attorney discovered that the metes-and-bounds description of the property in the Galen-Marshall deed did not correspond to the outline on the survey map. As a result of this discovery, the parties executed another document on April 21, 1992, which, like the first instrument, provided for the sale of the property. Like the first instrument, the second one contained no description of the parcel, stating only: “SEE LEGAL DESCRIPTION.” However, the second instrument provided: “Closing will take place within 10 days after satisfaction of legal description.(Emphasis added.) The Mullinaxes contend that the provision contemplated that Jeong would procure a “corrected” description. The instrument also required the Mul-linaxes to pay Jeong $500 at the first of each month until closing.

Jeong did not attempt to resolve the discrepancies in the descriptions. Instead, she sought to refund the Mullinaxes’ earnest money and refused their tender of the monthly installments. On May 19, 1992, the Mullinaxes sued Jeong and Galen-Marshall, seeking a judgment requiring Jeong and Galen-Marshall to deliver a deed to property described precisely as parcel two was described in the Galen-Marshall deed. Each party moved for a summary judgment. The trial judge granted the defendants’ motion, stating:

“It is undisputed from the documents filed, and the testimony presented, that the alleged contract or contracts do not contain any legal description. The only reference in either written document is ‘see legal description.’ There is revealed in the depositions, the fact that the parties had not been able to settle on a legal description.
“The Statute of Frauds in Alabama has been repeatedly held to apply to situations such as that presented here. The requirement of writing as to the description of the lands is such that the contract ‘must describe the lands with such certainty that they can be identified without resorting to oral evidence. While the writing need not give a technical description of the lands contracted for, it must contain facts sufficient to identify them. If it is necessary to resort to oral evidence for the intention of the parties to the lands bargained for, the writing is not sufficient, and the Statute is not complied with.’
“A review of other applicable law in Alabama indicates that the contract sued upon is void or voidable for failure to meet the Statute of Frauds.”

The Mullinaxes appealed, raising, as the sole issue, whether the instruments describe the subject real estate with sufficient specificity to comply with the requirements of Ala.Code 1975, § 8 — 9—2(5), the Statute of Frauds.

Section 8-9-2(5) provides in relevant part:

“In the following cases, every agreement is 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 ...:
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“(5) Every contract for the sale of lands, tenements or hereditaments, or of any interest therein, except leases for a term not longer than one year, unless the purchase money, or a portion thereof is paid and the purchaser is put in possession of the land by the seller....”

The trial judge correctly observed that the Statute of Frauds does not invalidate a contract merely because it contains “‘a general uncertain description[, where that description] can be made specific and certain by parol evidence of concurrent facts and circumstances sufficient to that end.’ ” Goodwyn v. Jones, 288 Ala. 71, 75, 257 So.2d [433]*433320, 324 (1971) (emphasis added) (quoting Dobson v. Deason, 248 Ala. 496, 498, 28 So.2d 418, 419 (1946)). However, the instrument must at least “ ‘furnish the means of identification, or, as some cases have it, ... provide the “key” to the identification, the applicable principle being that that is certain which can be made certain.’ Goodwyn, 288 Ala. at 76, 257 So.2d at 324 (emphasis added) (quoting Annotation, Statute of Frauds — Description of Land, 23 A.L.R.2d 6, 12-13 (1952)).

Thus, in Goodwyn the property forming the basis of the dispute involved four separate “campsites” located within a 34-acre tract. Each campsite had been separately leased to and occupied by one of four individuals for a considerable time before the dispute arose. Each individual had, on his campsite, “personally felled trees, cleared undergrowth, and moved rocks and boulders.” 288 Ala. at 73, 257 So.2d at 321. Each had “erected or caused to be erected comfortable buildings for [his] own occupancy; erected tool houses, storage sheds, installed septic tanks and field lines for sewage disposal; also, they [had] erected piers and docks.” Id. Each lessee eventually sought to purchase his campsite; the four lessees entered separate purchase contracts in which the offered property was described as “that area you are now occupying for a campsite (leased from the L & N R.R. Co.) at the rate of $500.00 for one-half acre.” 288 Ala. at 74, 257 So.2d at 322. The prospective purchasers sued for specific performance of the contract after the owner refused to convey the property.

This Court rejected the owner’s argument that the language did not describe the property sufficiently to satisfy the Statute of Frauds. It concluded that the description, although stated in general terms, was sufficient, where each purchaser was offered the area on which he resided — an area that was well demarcated and recognized. Under those circumstances, it explained, the owner could not “complain against evidence to establish by metes and bounds, or other description, the occupied area.” 288 Ala. at 77, 257 So.2d at 325.

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Cite This Page — Counsel Stack

Bluebook (online)
642 So. 2d 431, 1994 Ala. LEXIS 309, 1994 WL 195470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullinax-v-galen-marshall-inc-ala-1994.