Rovelsky v. Scheuer , 114 Ala. 419 ( 1896 )

McCLELLAN, J. —

This bill is,exhibited by B. Scheuer & Brother and Rachel Schloss against Dora Rovelsky et al., for the specific performance of a parol contract to convey land alleged to have been made by the said Dora. The case made by the bill is this : The said Dora owned the land in controversy and was .indebted to B. Scheuer & Bro. in the sum of $861, and to Rachel Schloss in the sum of $1,861. She was engaged in a mercantile business at Ozark which was carried on, managed and controlled by Max Rovelsky in her name, and in respect of it he was her general agent. The debt of B. Scheuer & Bro. and $774 of the debt of Rachel Schloss was contracted by said Max for Dora in this business. $1,087 of Rachel’s debt was for money borrowed by Max in the name of Dora, and used by him in paying the purchase money for a house and lot which he bought for her and at her direction at an execution sale. For this latter sum he executed a mortgage in Dora’s name on said property to Rachel Schloss. This was on March 19, 1890. On or about December 20, 1890, the said Dora in person executed a mortgage, covering the property here involved, to the complainants to secure the payment of said several sums, amounting in the aggregate to about $2,722. At the time of this transaction, the said Dora asked or told complainants not to have the mortgage recorded, giving as a reason for the request or direction that Max Rovelsky was thén in New York “and that as soon as he returned, she would settle the entire indebtedness” to the complainants, “by selling them the real estate described in the mortgage in discharge of the same, the papers to be fixed by Max Rovelsky as soon as he returned.” On or about March 16th, following, said Max, acting, the bill alleges, for the said Dora, and in accordance with her proposition of December 20th to sell to complainants, came to them and offered to sell said land in satisfaction of said indebtedness, and thereupon it was agreed by and between complainants and Max, acting for Dora, that the land should be sold and conveyed by the latter to complainants for the sum of $3,000, the indebtedness to be can-celled and receipted for, and the balance, about $300, to be paid in cash. This agreement was carried out by complainants, who cancelled and surrendered the evidence of their debts and the mortgages before referred to, and paid the balance of the purchase price to Max or Dora by checks payable to the latter. Max Rovelsky at the same time executed to complainants a deed to the land in the name of said Dora, and in his own and his wife’s name. And thereupon the said Max as the agent of Dora rented the property thus conveyed from the complainants for the ensuing year at the rate of forty dollars per month, executed to them notes for the rent of each month in the name of Dora, continued in possession of the property as the agent, and carried on the business, of said Dora on and in the property, and for several months paid said rent notes with her funds and as her agent. All this was done. — the conveyance made, the possession constructively given under it, the property rented from complainants, the rent notes executed and paid, &c., &c. — the bill avers with the knowledge and consent, and by the parol direction and authority of the said Dora. Afterwards, she attempted to repudiate the contract to convey, and Max’s authority in the premises &c., &c. ; and now insists that she had no knowledge of any of the transactions alleged in the bill. Such is the case made by the bill; and upon it, we think the complainants are entitled to the relief prayed, if they have sustained their averments by the evidence. The facts alleged, in other words, show a sale by an agent under parol authorization, payment of the purchase money, and a surrender of the possession to the purchasers. These facts, if proved, take the case out of the influence of the statute of frauds, and make a case of contract of sale specifically enforceable in a court of chancery. The demurrers to the bill were, therefore, properly overruled. — Franklin v. Pollard Mill Co., 88 Ala. 318, and cases there cited.

A very careful examination and consideration of the evidence leads us to the conclusion that the material averments of the bill have been proved with the requisite degree of certainty. That the property was conveyed to complainants in the name of Dora Rovelsky by Max Rovelsky, who was her general agent as to the mercantile business, and who in fact transacted all her business for her, that he rented it from them in her name and continued to use it in carrying on her busi-' ness, and that he paid the rent for several months in her name and with her money, are each and all fully proven facts in tlie case. It is likewise established beyond serious controversy that the purchasers at that sale paid the purchase money in great part by the satisfaction of just debts they held against Dora Rovelsky, and for the rest by checks drawn in her favor and which passed through and were paid into her mercantile business. Really, the only issue in the case is whether she authorized or ratified the acts of Max Rovelsky in the sale of this land to complainants. The evidence fairly preponderates and is satisfactory to show that she executed the mortgage of December, 1890, as averred in the bill, that, this being done in the absence of her man of business, she regarded it as only a temporary arrangement to obtain until Max should recover from his illness and return from New York, that she then had it in mind to pay the debts due complainants when Max should return, either in money or by a sale of this property to them, and that, in part because of such purpose, she requested the mortgage to be withheld from record until her agent should return, and it could be determined whether and how the debts should be paid and the mortgage satisfied. Having this object in her mind, it is not hard to believe, but, to the contrary, altogether reasonable and probable, that on the return of Max Rovelsky she took steps to execute it, and, finding she did not have the money with which to pay these debts — a fact inferable from subsequent developments — she took the alternative course of authorizing Max to convey the property to complainants in payment of the debts, receiving the value thereof in excess of the debts in money. This probability of such authorization is strengthened by her own admission that she knew of the sale soon after it was made and the absence of any believable testimony that she ever dissented until long afterwards, and then because of complainants’ refusal to give bail for her son Max; by the contrary fact that she expressed her satisfaction that the sale had been consummated, and by the fact that she knew of the lease of the property from complainants and the contract to pay them, and the payment of, rent — knowledge necessarily resulting from her knowledge of the sale and her continued occupation, and which is also shown by the testimony of disinterested witnesses — and made no objection thereto, and also by the fact that she swore on the habeas corpus proceedings in effect that this property did not belong to her. And thus reaching the conclusion that she authorized Rovelsky in parol to sell and convey the property, there being no serious question, as we have seen, as to the other material averments of the bill, we concur with the chancellor that complainants are entitled to relief, and his decree granting the relief prayed is affirmed.

Affirmed.