City Loan & Banking Co. v. Poole

ANDERSON, J. —

The main point insisted upon by the appellant in this case is that its title should prevail over the claim of the appellee, because appellee’s purchase of the lots in question was within the fifth sub *168 division of the statute of frauds. — Section 2152 of the Code of 1896. The only parol purchase excepted from the influence of this statute is that “the purchase money, or a portion thereof be paid and the purchaser be put into the possession of the land by the seller.” It is true that both of these acts must concur to save the purchase from the influence of the statute of frauds. — Heflin v. Milton, 69 Ala. 354. They need not be contemporaneous, however. If the purchaser is put in possession and subsequently pays the purchase-money, or a paft thereof, or if he pays the purchase-money, and is subsequently put into possession, the transaction is beyond the influence of the statute of frauds. — L. & N. R. R. Co. v. Philyaw, 94 Ala. 463, 10 South. 83; Powell v. Higley, 90 Ala. 103, 7 South. 440.

The complainant met John Bowman in Birmingham as per appointment on the morning of December 16, 1903, and paid him the purchase price of the lots, |300, and was tiren instructed.by Bowman to take possession, which he did the next day, by moving into the house, where he has resided ever since, and where he was residing when the respondent’s grantor, Prude, got both his mortgage and deed from Bowman. Nor does it matter that Bowman did not get his deed from Edwards and others until the afternoon of December 16th, the day the complainant paid him the purchase money. He had the legal title to the lots before the concurrence of the two acts essential to validate the complainant’s purchase from him, and all of which occurred before the respondent or its vendor, Prude, acquired any claim or right to the land. The complainant being in the adverse possession of the land under .a valid contract of purchase, when Bowman executed the deed and mortgage to Prude, the respondent’s vendor, and when Prude conveyed to it, they were all void as to* him. — Pearson v. King, 99 Ala. 127, 10 South. 919; Davis v. Curry, 85 Ala. 133, 4 South. 734. So, too, is possession of land under a contract of purchase sufficient to put a purchaser on notice. — Anthe v. Heide, 85 Ala. 236, 4 South. 380; Reynolds v. Kirk, 105 Ala. 446, 17 South. 95.

It is also insisted by counsel for appellant that the first ground of the demurrer should have been sustained, *169 because the bill fails to aver the age and residence of the parties. It is true that the better practice is to make these averments; but all parties are presumed to be sui juris, and the bill is not demurrable for a failure to state the age, except when it shows the incapacity of the parties to sue or be sued. — Liddell v. Carson, 122 Ala. 518, 26 South. 133. Moreover, the respondent is a corporation, and, if the complainant urns incapacitated from suing, the defect should have been raised by plea, but which would have amounted to nothing in the case at bar, as the undisputed evidence showed him to be over 40 years of age. It is also the better practice to aver the residence of the parties, and it is sometimes necessary to do so in order to show jurisdiction; but in the case at bar it was unnecessary, as the averment that the land, the subject-matter of the suit, ivas located in Jefferson county, ivas sufficient. — Section 676 of the Code of 1896. The other object to be obtained by averring the residence of the parties is to expedite and designate service of process, and to secure cost in case the complainant is a nonresident. In the case at bar the complainant is a resident of Jefferson county, and the- respondent made an unconditional appearance, thus doing away Avith any need of ascertaining its residence in order to get serivce.

The decree of the chancellor is affirmed.

Affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.