Lewis v. Teal , 82 Ala. 288 ( 1886 )

STONE, C. J.

— Possibly, if the testimony found in this record was before us as a court of original jurisdiction, we might hesitate before finding there was a contract of sale between Bass and Holley. The chancellor found there was, and we are not clearly convinced he erred in so finding. Nooe v. Garner, 70 Ala. 443. Nor is it manifest that he erred in failing to find anything due to Holléy, on the judgment he claims to have purchased from McDuffie.

One of the arguments for reversal invokes tbe application of the principles of the statute of frauds. Is it raised ? The bill avers that Holley’s promise to pay for the land was oral, and denies that he has made any payment. There is not even an averment that he ever took possession. In this state of the averments, if there had been a demurrer, assigning this as a ground, the question would have been raised. Not being raised by demurrer, has it been raised by plea; or averment in the answer ? Such defense, to be available, must be pleaded, or raised by demurrer, when the averments of the bill, as in this case, authorize demurrer. — Hughes v. Hatchett, 55 Ala. 539; Heflin v. Milton, 69 Ala. 334; Clark v. Taylor, 68 Ala. 453; Bolling v. Munchus, 65 Ala. 558; Phillips v. Adams, 70 Ala. 373; Bailey v. Irwin, 71 Ala. 505; Shakespeare v. Alba, 76 Ala. 351. If the allegations of fact necessary to raise this defense are found in the answer, they were not placed there with any view of invoking the statute of frauds. They are simply reiterations of the averments of the bill, and are part-of the.plea of the statute of limitations. It is not shown that this defense— statute of frauds — was relied on, or called to the attention of the chancellor. Can the defense be made by a purchaser who has received a conveyance?- — Gordon v. Tweedy, 71 Ala. 202. If there is anything in this defense, we need not and-do not .consider it, because it is not raised by any assignment of error.

There is evidence of fraud and gross abuse in the attempt to establish the defense relied on, which justifies unfavorable presumptions against its bona fides; and the comments of the chancellor in this connection were fully justified. We are not prepared to say substantial justice has not been done in the premises.

The decree of the chancellor is affirmed.