Saint v. Britnell

91 So. 310, 206 Ala. 533, 1921 Ala. LEXIS 254

• Court: Supreme Court of Alabama
• Decided: October 20, 1921
• Docket: 8 Div. 378.
• Status: Published

Opinion

McCLELLAN, J.

The appellant, as administrator of the estate of Nancy Sugg, sued the appellee for $200. The claim averred was referred to a written contract, executed by Nancy Sugg and the appellee. The single count in the complaint proceeded on the expressly avowed theory that the writing evidenced a sale, consummated, of the life estate of Nancy Sugg in certain lands,, the purchase price therefor being stipulated as $200 a year, payable October 20th of each year during the life of Nancy Sugg. The instrument (omitting the description) is reproduced in the report of the appeal. The court gave the general affirmative charge for the defendant, appellee.

[1] The appellee was the owner of the remainder interest in the land, with reference to which Nancy Sugg and appellee made the contract mentioned. The contract between these parties is not of doubtful effect or operation. It was a “lease,” a rental of the land, by the life tenant as "lessor to the appellee as lessee, not a sale of the -life estate in the lands. There are in the writing 'no words indicatory of a purpose to convey an estate in the land. In the instrument it is called, in one alternative, a lease. The duration of the “lease or contract” was defined as coincident with the lessor’s life. It' was the function of .'the court to give effect to the meaning expressed by the parties in the instrument. Hence there was no error in excluding parol evidence directed to the varying or contradiction of. the terms of the' instrument.

[2] The. affirmative charge, given at the instance of the defendant (appellee), is to be justified, and is justified, alone because of a variance between the stated allegations of the complaint and the contract offered in evidence, a matter of practice, not involving a conclusion and judgment, final in nature, on the merits. Ellis v. Drake, ante, p. 145, 89 South. 388; Schillinger v. Leary, 201 Ala. 256, 258, 77 South. 846, citing earlier pronouncements here.

[3] The administrator of Nancy Sugg, the life tenant lessor, who died during the rent term 1920, is entitled, for aught that appears in this record, to recover of appellee, in a proper action, the just proportion, measured by time, of the $200 appellee engaged to pay October 20, 1920; the rent for that year being subject to apportionment under the lease of the life tenant. Graham v. Graham, 205 Ala. 644, 89 South. 25, English v. Key, 39 Ala. 113, 117, among other authorities cited in the Graham Case, supra.

The general charge for appellee was justified for the reason stated: the complaint having mistaken the character of the contract.

The judgment is affirmed.

Affirmed.

ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ, concur.