[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 692 The bill in this case is by appellee against appellant and his wife to enforce specific performance of a contract to sell and convey certain lands or real estate. The defendants demurred to the bill, assigning various grounds therefor. The trial court overruled the demurrer of the appellant, and sustained that of the wife, and defendant appeals.
We are of the opinion the trial court was correct in overruling the demurrer.
We find no substantial defects or faults as to the bill, as to the matters complained of, or otherwise of which this appellant can complain. If there be any defects of form or substance, which we do not affirm, such defects do not go to the bill as a whole, but only to parts thereof, and no demurrer points out any such defect as to any particular part thereof.
While the defense of the statute of frauds is sometimes availing by demurrer, yet, if the facts stated in this bill are true — and on demurrer they are so treated — the statute of frauds is not violated, but the case falls clearly within the exception, whether raised by answer or plea.
The bill alleges that a part of the purchase money was paid, and the vendee placed in possession. This being true, it is wholly immaterial whether the check in question — by which the part of the purchase price was paid — was sufficient or insufficient as a note or memorandum of the sale. No note or memorandum whatever is required of the contract of sale if a part of the purchase price is paid and the vendee put in possession. The great trouble with this check answering as a memorandum of the contract of sale is that it is not signed "by the party sought to be charged," unless, probably, the indorsement thereon could serve as such, as to which we do not intimate an opinion. As before stated, no writing whatever is necessary under the facts alleged in the bill.
The bill does allege an oral contract or agreement to sell and to convey, on a sufficient consideration, and that a part of the purchase money was paid, and the purchaser or vendee was put in possession of the lands sold.
This contract is by no means void for uncertainty as to the terms of the agreement, or as to the description of the land to be conveyed. The bill clearly shows not only that the lands sold can be ascertained and made certain, but it shows that they have been made certain because it alleges that the defendants placed the complainant in possession. It is not at all necessary that the payment of the part of the purchase price, and the placing of the vendee in possession, shall be concurrent acts as to time or place. It is sufficient if both acts are performed by the proper parties before the attempt to enforce specific performance.
When the bill shows a contract of sale and agreement to convey, which is definite and certain enough to be performed, it is not necessary that the bill should negative any other terms or conditions. If such there be, these are defensive matters availing only by plea or answer. A plaintiff is only required to show affirmatively a right to relief, or to recover; he is not required to negative all possible defenses.
It is true that no certain or definite time is fixed as to when the purchase price should be paid. It is, however, made certain by the delivery or offer to deliver a deed, and, if a tender of the purchase price is made, the duty then arises to make the deed.
The two acts of paying the purchase price and the delivery of the deed are in a sense concurrent acts, and either party is thereby given the right to demand performance of the other, and to place him in default if he refuses or fails to perform within a reasonable time. Neither party can be said to be in default until an offer is made by the other to perform. Of course, the offer by either party must be within a reasonable time, and unless the bill shows affirmatively that the offer was not made within a reasonable time, this would be defensive matter. The bill *Page 693 here, we think, does not affirmatively show that the offer to pay was not made within a reasonable time.
If the time elapsing between the making of the contract and the offer to pay was unreasonable, the facts to show it was so unreasonable must be set up by plea or answer.
It is very true that bills of this character require precision and certainty, both as to terms of contract of sale and of the land to be conveyed; but the bill in this case meets all the requirements of the law.
While the right to specific performance is never an absolute right, yet courts of equity exercise a sound discretion, and will compel performance when the law will allow it, and the equity of the case made merits such relief. 7 Mayfield's Digest, 836.
It has been held by this court that as early as 1746 Lord Hardwicke said:
"The constant doctrine of this court is that it is in their discretion whether they will decree a specific performance, or leave the plaintiff to his remedy at law." 3 Atk. 388.
This doctrine has been steadily maintained down to the present time. Seymour v. Delancey, 6 Johns. Ch. (N.Y.) 222; Ellis v. Burden, 1 Ala. 458; 2 Story's Equity, 736-742. "The question is, not what the court must do, but what the court may do, under the circumstances." This discretion is not an arbitrary assumption of authority, but a sound discretion, regulated, as near as may be, by general rules. Pulliam v. Owen, 25 Ala. 492; Sims v. McEwen's Adm'r, 27 Ala. 184; Casey v. Holmes, 10 Ala. 777.
It is not necessary to authorize specific performance for a contract for the sale and conveyance of land to specify the character of deed to be executed, though such provision may be proper, and, if reasonable, will be enforced.
The learned trial judge wrote an able and elaborate opinion in which he cited and reviewed the authorities on the subject, which are applicable to this case, and, without binding ourselves by all that is said in the opinion, in the main it is sound, and we direct the reporter to set it out in the statement of the case, which will aid in the better understanding of this opinion.
We find no error, and the decree appealed from is in all things affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur. *Page 694