(dissenting):
The respondents, Theresa R. Christian and her husband, J. M. Christian, appeal *52from a decree granting to the vendee specific performance of an alleged contract for the sale of land.
The averments of complainant’s amended bill of complaint are to the following effect :
The respondents executed an option to sell certain land. A copy of the option is made a part of the bill as Exhibit A thereto. As here pertinent, Exhibit A recites:
“KNOW ALL MEN BY THESE PRESENTS, That I, Wilbur Franklin and wife, Maggie M. Franklin, Athy Schlimer and husband, Robert Schilmer (sic), Theresa R. Christain (sic) and husband, J . M. Christain (sic), in consideration of $5.00 paid by Tom Rabren, the receipt whereof is hereby acknowledged, we do hereby, for ourselves, our heirs, executors and administrators, agree to sell and convey to said Tom Rabren, or his assigns, for the consideration hereinafter mentioned the following described real estate .... to-wit:
“(Description)
“The consideration to be paid by said Tom Rabren, or his assigns shall be the sum of $9,200.00. This option may be accepted by said Tom Rabren or his assigns within twelve months from the date hereof by written notice to that effect. Conveyance shall be made within thirty days after such acceptance by a warranty deed conveying a clear title free from all encumbrances.
“It is agreed that if the said Tom Rabren, or his heirs and assigns, however the case may be, shall fail to accept this option within the time above mentioned, or shall after such acceptance fail to pay the said sum of $9,200.00, the consideration above mentioned, at the time and in accordance with the terms and conditions hereinbefore mentioned, the said Tom Rabren, or his heirs and assigns, however the case may be, shall forfeit the said sum of $5.00 paid to us, as hereinbefore acknowledged.”
Exhibit A shows that Wilbur Franklin, Maggie M. Franklin, Theresa R. Christian, and J. M. Christian signed the option and acknowledged execution thereof before a Notary Public.
Exhibit A shows that Athy Schlimer and Robert Schlimer did not sign the option. The exhibit shows that their names were typed in the body of the certificate of acknowledgment together with the names of the other four sellers, but a line was drawn through the names of Athy Schlimer and Robert Schlimer so that the certificate does not appear to indicate that the Schlimers acknowledged that they executed the option.
As amended, the bill recites:
“Your Complainant further avers that the Respondents own an undetermined interest in said property described in Exhibit A.”
The option is dated March 25, 1969. Complainant avers that he has notified respondents of his decision to exercise the option on March 17, 1970, “and several times thereto” and has demanded that respondents execute a deed as required by the option; “that he has tendered the money to the Respondents,” and they have refused to comply with the terms of the option.
Complainant avers that he is now ready to comply with the terms of the option and offers to do equity. He prays that the court “enter an order directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate.”
The amended bill includes the following prayer:
“Complainant further prays that this Court will determine the interest in said property of the Respondents and will abate the purchase price to be commen*53surate with the interest of the Respondents."
The court overruled respondents’ demurrer to the amended bill, and this ruling is assigned as error.
Respondents filed answer to the amended bill. In their answer respondents admitted that they owned a one-third interest in the land.
After a hearing ore tenus on November 19, 1971, the court rendered a final decree filed January 28, 1972. The court found that respondents, for a consideration, executed Exhibit A “ . . . . whereby the respondents agreed to sell and convey to the complainant the lands made the subject of the suit . . . . ”
The court further found that within the terms of the option, complainant notified respondents of his decision to exercise the option, tendered to respondents “the sum required for the exercise thereof,” and demanded that respondents execute a deed as required by the option. The court further found that respondents, without just cause, refused “to execute conveyance of their interest within thirty days” after the option was exercised by complainant.
The court decreed that respondents specifically perform the option within twenty days by executing and delivering to the register, for delivery to, complainant, a warranty deed conveying their undivided one-third interest in the land to complainant.
The court further decreed that should respondents fail to comply with the decree within the time allowed, the complainant is the rightful owner of all the interest of respondents in the land, and the register is directed to execute and deliver to complainant a deed conveying said property to complainant.
By decree filed February 16, 1972, the court, ex mero motu, amended the decree by substituting “30 days” for “20 days” wherever the same appear in the original decree.
On February 25, 1972, respondents filed application for rehearing, and the court suspended the decree pending the court’s ruling on the application for rehearing.
After a hearing, the court, on April 11, 1972, rendered a decree wherein the court expressed the opinion that the decrees of January 28 and February 16 should be amended to require respondents to deliver to complainant a warranty deed conveying “ . . . . their interest in the property hereinafter described and as described in the original decree within twenty days from the date of this amended decree and failing therein that the Register . . . . ” should present to the Covington County Bank a certified check which was introduced in the cause, payable to respondents, and endorse the same, and upon receipt of $3,066.67 execute a register’s deed conveying to complainant all interest of respondents in the land “ . . . .or any interest which they might hereafter acquire in said lands.”
The court then decreed as follows:
“IT IS THEREFORE CONSIDERED, ORDERED, ADJUDGED AND DECREED by the Court that within twenty days from the date of this decree that the Respondents execute a warranty deed to the Complainant conveying the following described lands to-wit:
“and deliver the same to the Register of this Court for delivery to the Complainant and the Register is hereby directed to deliver to the Respondents the certified check which was introduced in the evidence in this cause.
“It is further Considered, Ordered, Adjudged and Decreed by the Court that if said Respondents fail to deliver said deed to the Register of the Court within twenty days from the date of this amended decree, the Register of this Court is hereby directed to present the check, which has previously been introduced in evidence, to the Covington County Bank *54to endorse thereon the names of the Respondents, by the Register as their attorney in fact under the provision of this decree and upon receipt of the payment of said money to execute and deliver to the Complainant a Register’s deed conveying to the Complainant the interest of the Respondents or any after acquired interest of the Respondents in and to the following described lands to-wit:”
At the .first hearing on November 19, 1971, three witnesses testified. Their testimony appears on sixty-one pages of the transcript. Eleven exhibits were received in evidence.
Respondents assign errors as follows:
“1. The Court erred in overruling the demurrer of the Appellants filed April 27, 1971 to the bill of complaint as amended. (R. 7)
“2. The Court erred in its decree on the application for rehearing by ordering the Appellants to execute a warranty deed to the lands described in the decree and, without specifying the limited, undivided interest of Appellants, and in the same decree the Court also erred in ordering the Register to convey any after acquired interest of Appellants in the described lands, in the event the Appellants failed to deliver a deed to the Register conveying the whole interest in the whole tract. (R. 15 & 16)
“3. The Court erred in decreeing specific performance on an instrument that is unenforceable on its face. (R. 2 and 3)
“4. The Court erred in ordering specific performance on an alleged option which the Appellee himself acknowledged was incorrect and that he subtracted 41 acres from the original option, for the purpose of computing the value of the land but did not eliminate the 41 acres from the tract description in the instrument executed March 25, 1969. (R. 63 and 64)”
By seeking specific performance of a contract, the complainant assumes the burden of averring and proving that the respondents entered into a valid contract for the sale of certain land to the complainant, the terms thereof, and performance by the complainant on his part, or a sufficient excuse for nonperformance, accompanied with averments showing he is able and willing to perform, and offers so to do. Chandler v. Bodeker, 219 Ala. 357, 122 So. 435.
The question here is whether the averments of the bill show that the respondents entered into a contract which bound them to convey separately the land in suit or any part of it. The respondents assign as error the overruling of a demurrer to the complaint as amended, one of the grounds of which was that Exhibit “A” to the bill of complaint shows on its face that it is unenforceable. Not only is it a 'well-established rule of pleading that in a bill for specific performance great accuracy of averment is required, Tillman v. Calhoun Lumber Co., 245 Ala. 595, 18 So.2d 561; but, also when tested by demurrer, the averments of a bill for specific performance must be construed most strongly against the complainant. Tillman, supra; Williams v. Owens, 273 Ala. 625, 143 So.2d 633. This court, in Jackson Realty Co., Inc. v. Yeatman, 219 Ala. 3, 121 So. 415, approved in AGM Drug Co. of Alabama v. Dobbs, 277 Ala. 493, 172 So.2d 379, stated:
“It is the settled rule of our decisions, that ‘bills in chancery must set forth, not the evidence, but every material averment of fact necessary to complainant’s right of recovery. So complete must be the averments of fact that, on demurrer, or decree pro confesso, the court can, without evidence, be able to perceive and affirm that complainant is entitled to the relief prayed. Relief can only be granted on allegations and proof; and the latter will never be allowed to supply omissions or defects in the former. Allegations, admitted or proved, are the only premises which will uphold a chancery *55decree.’ McDonald v. Mobile Life Ins. Co., 56 Ala. 468; Westbrook v. Hayes, 137 Ala. 572, 34 So. 622. ...” (219 Ala. at 6, 121 So. at 418)
The terms of the option contract, Exhibit “A,” are that six persons named therein agree to sell and convey to the complainant, for the consideration stated, the land in suit. The option provides that the complainant may accept the option within twelve months from its date, and that: “Conveyance shall be made within thirty days after such acceptance by a warranty deed conveying a clear title free from all encumbrances.” There is nothing apparent in the option whereby the makers, or any of them, agreed to convey anything less than the entire title to all the land.
In the original bill, the complainant prays for a decree “directing said Respondents to comply with the terms of said option and execute a warranty deed to your Complainant conveying said real estate.”
By amendment to the bill, the complainant avers that the respondents “own an undetermined interest in said property” and prays that the court abate the purchase price to be commensurate with the interest of the respondents.
There is no prayer that the respondents convey their interest, determined or undetermined. The option itself, by naming six persons to sign as makers, gives notice that none of the six makers own the entire interest in the land, and, necessarily, it follows that each maker owns an interest less than the whole. Where a contract is set out in haec verba, and is uncertain and ambiguous, the pleading must put some definite construction on it by averment. 81 C.J.S. Specific Performance § 128, page 687. The option, Exhibit “A,” shows on its face that the parties contemplated that all six makers named in the option would sign it. It does not show that the respondents agreed to convey their interest separately from the other contemplated signers.
The burden is on the complainant to aver facts, not evidence, to show that the respondents entered into a contract to convey separately the land in suit, or any part of it. The complainant failed to carry this burden.
On an appeal from decree denying specific performance of a contract to sell land, this court said:
“In Axe v. Potts, 349 Pa. 345, 348, 349, 37 A.2d 572, 574, 154 A.L.R. 764:
“ ‘ * * * In the present case, the agreement designated three persons as the owners, and when executed by only two of them, was patently incomplete. The agreement was not joint and several, but joint only, and we cannot substitute for the terms therein set forth the terms of a new and different contract. * * * ’
“The rule here applicable has been stated as follows:
“ ‘Where one of several owners of property in common promises to join in a conveyance of the whole with the others but does not promise that the others will so join and does not promise that he will convey his own interest separately, it is no breach by him to refuse to convey when the others will not or cannot join. No judgment for damages against him would be justified; nor would a decree for specific performance against him separately, whether with or without compensation for non-conveyance of the other interests. Such a decree is not justified unless he promised that the interests of the others as well as his own would be conveyed. Even if all the owners had jointly contracted, it would generally be unjust to decree conveyance by one when conveyance by the others cannot be compelled.’ Corbin on Contracts, Vol. 5, § 1160, at page 694.
“The decree is in accord with this rule and is affirmed.” Jones v. Mc-*56Givern, 274 Ala. 232, 234, 235, 147 So.2d 813, 815.
For the reasons stated above, I am of opinion that the decree appealed from should be reversed and the cause remanded.
FAULKNER, J., concurs.