The majority opinion characterizes this case as "a hard case" but this characterization does not satisfy or meet the requirements of justice and equity. When the facts alleged in the bill are treated as true, admitted by the demurrer to be true, it is more than "a hard case", as foreshadowed by the opinion. It is a failure of justice.
The facts alleged, stated in brief, are that complainant had a good job at Camp Rucker, was engaged in work receiving good compensation when the deceased, Jim Smith, approached her and induced her to give up her job and go with him to his home to take care of said Smith, to do his drudgery and look after him until his death, and in carrying out and performing her part of the contract complainant continued to look after and care for said Jim Smith until his death. After complainant went to his home Smith made an agreement with her, in the presence of witnesses, that if she would do these things for him, he would give his house and lot where they lived and vest title in her by will.
The complainant not only looked after Jim Smith, but according to the averments of the bill, she was put in full possession and control of the property by said Smith in his lifetime, he declaring in the presence of witnesses, that she had full control and possession of the property which he had surrendered to her. She paid the taxes, made repairs on the house and paid for them and complainant performed all the obligations which she assumed in the contract with Smith. Smith was old, infirm and sickly. Complainant nursed him, cooked for him, washed his clothes, performed household duties and cared for him until his death. After years of service, Smith rewarded her efforts by fraudulently conveying the house and lot to a relative for a consideration of $1. So far as appears in the averments of the bill, this is the only property the said Smith owned, and if the pronouncement of the majority stands, complainant is left without remedy, and courts of equity are deprived of their glorious heritage of leaving no right without a remedy.
This is indeed "a hard case" and in order to deny relief the majority invoke two *Page 116 rules of evidence to rebut facts admitted as true by the demurrer. The first of these rules is, if two persons are in possession of a parcel of real property, nothing further appearing, the presumption of law is that the holder of the legal title is in possession. The other is that verbal disposition of real property under the statute of frauds is void unless the purchase money or a part thereof is paid and the purchaser is put in possession. This rule of evidence is not only invoked in this case to dispute the admitted facts, but to protect the fraudulent grantee of said Jim Smith. These rules of evidence are invoked to destroy complainant's case, resting on the admitted truth of the bill's averments before she has an opportunity to present evidence. Wood et al. v. Lett et al., 195 Ala. 601, 71 So. 177.
It is well settled law in Alabama that the statute of frauds cannot be invoked to defeat rights resting upon an executed contract by the complaining party — that is, a contract which has been performed by the party to its letter. Among other cases we cite the following: Endsley v. Darring, 249 Ala. 381,31 So.2d 317; Warner v. Warner, 248 Ala. 556, 28 So.2d 701; Talley v. Talley, 248 Ala. 94, 26 So.2d 586; III Brickell's Digest, p. 514, § 100, and authorities cited; Kling v. Tunstall, 124 Ala. 268, 27 So. 420; Read v. Rowan, 107 Ala. 366,18 So. 211; McMahan v. Jacoway, 105 Ala. 585, 17 So. 39.
It is well settled that the validity of the contract under the statute of frauds cannot be presented by demurrer unless it affirmatively appears on the face of the bill that the contract is void. Johnson v. Maness, 232 Ala. 411, 168 So. 452; McDonald v. McDonald, 215 Ala. 179, 110 So. 291; Brown etc. Lumber Co. v. Rattray, 238 Ala. 406 (409), 192 So. 851, 129 A.L.R. 526; Trammell v. Craddock, 93 Ala. 450, 9 So. 587.
In pleading or declaring on a contract which is required to be in writing, it is not necessary to aver that it was reduced to writing. Martin v. Wharton, 38 Ala. 637, 641. See also Irvin v. Irvin, 207 Ala. 493, 93 So. 517.
Again, where the contingency upon which the liability is to accrue may happen within one year, the agreement is not one embraced within the statute. Carey Mfg. Co. v. Southern Const. Co., 2 Ala. App. 292, 56 So. 746; Brown, etc., Lumber Co. v. Rattray, supra. As applied to the instant case, Smith's death might have occurred within one year after the agreement was made and this contingency relieves it from the operation of the statute of frauds.
The statute of frauds cannot be invoked to uphold a conveyance made to defraud complainant of her demands. Code of 1940, Tit. 20, § 7.
"It is well settled in most jurisdictions that, where one party to an oral contract has, in reliance thereon, so far performed his part of the agreement that it would be perpetuating a fraud on him to allow the other party to invoke the statute of frauds, equity will regard the case as being removed from the operation of the statute. This doctrine, however, as shown supra, § 249, is an equitable one and is not ordinarily applied in actions at law based on the contract unless the part performance consists of complete and full performance by at least one party thereto. * * *" 37 C.J.S., Frauds, Statute of, §§ 249, 251.
This doctrine last above stated is consistent with our cases cited at the head of this opinion. I, therefore, respectfully dissent.
SIMPSON, J., concurs in the conclusion of the foregoing dissent.