Chesser v. Motes , 180 Ala. 563 ( 1914 )

ANDERSON, J.

The deed from Motes to his Avile, this appellee, was absolute and unconditional. It did not create any trust in the land for this appellant, or require a sale by the vendee so as to work an equitable conversion of the land into personalty. The appellant, in order to recover a part of the proceeds arising from a sale of the land by Mrs. Motes., relies solely upon a parol agreement between Motes and Iris wife, at the time he conveyed her the land, that she would sell the same and divide the proceeds between this appellant and other children of the grantor; Motes. A parol trust of this character is forbidden by section 3412 of the Code of 1907, and cannot be enforced.—Tillman v. Kifer, et al., 166 Ala. 403, 52 South. 309; Patton v. Beecher, 62 Ala. 579; McCarty v. McCarty, 74 Ala. 552; Moore v. Campbell, 102 Ala. 445, 14 South. 780. It has been suggested in brief of counsel that this statute does not prevent parol trusts as to personalty, and that there was a conversion of the land into money, and which should operate from the time of the execution of the deed by Motes to his wife, and we are cited to the case of Allen v. Watts, 98 Ala. 384, 11 South. 646. This case cannot help this appellant, as the will there directed a sale and provided what should be done with the proceeds. Here the trust sought to be enforced is not only in parol as to what was to be done with the proceeds, but the deed from Motes to his wife does not provide for or direct a sale of the land, and such fact can 'only be established by parol. Moreover, the case of Allen v. Watts, supra, was explained in the case of Moore v. Campbell, 102 Ala. 445, 4 South. 780, wherein it' was held that, notwithstanding the conversion under a will might take place as from the death of the testator, it would be regarded as operating solely in favor of those who are made beneficiaries under said will. As to one not claiming under the will, realty remains realty until actually converted into money; and if the agreement was void by reason of the fact that it related to realty it does not become valid when the realty, the subject-matter of the agreement, is converted into personalty. In the case at bar, when the agreement which is sought to be enforced was made, there had been no conversion of the land into personalty, and the claim of the plaintiff was not under the deed, but is based upon an independent parol agreement between Motes and his wife as to what should be done with the proceeds of the sale of the land when subsequently made by the wife; and said agreement is nonenforceable under the terms of section 3412 of the Code of 1907.

The cases of Taylor v. Crook, 136 Ala. 377, 34 South. 905, 96 Am. St. Rep. 26, and High v. Worley, 33 Ala. 196, as to when the equitable conversion does and does not arise under a will, have no application to the present case, and which said principle was dealt -with and held not applicable to a parol agreement similar to the one in the case of Moore v. Campbell, supra, and which discussed the case of Allen v. Watts, supra.

This case is argued and has thus far been consider-' ed as if the question involved was controlled by the Alabama law, and was, in fact, an Alabama transaction. The deed seems to have been made in this state, but the subject-matter of same is in Oklahoma, and tlie laws controlling would doubtless be the laws of the situs of the land conveyed. The laws of Oklahoma have not been introduced, and if we apply the common law the result would be the same as if the land was located in this state. — 39 Cyc. 81-83. On the other hand, if Oklahoma was a part of territory wherein a government existed prior to its accession to the United States, and was such that would not authorize us to apply the common law to the question involved, we would apply our own law, in the absence of the production of the statutes of Oklahoma. It may be regarded as settled that when the subject-matter of a suit is governed by the laws of another state, in which we cannot presume the existence of the common law, and parties resort to the courts of this state for the enforcement of contracts or rights controlled by tbe laws of said other state, and do not produce the law of the lex loci, we will apply our own law.—Watford v. Alabama & Florida Co., 152 Ala. 178, 44 South. 567.

The trial court did not err in giving the general charge for the defendant, and the judgment must be affirmed.

Affirmed.

Dowdell, C. J., and Mayfield and de Graffenbied, JJ., concur.