# Barclift v. Peinhardt

> Alabama Court of Appeals · November 15, 1921 · 18 Ala. App. 340

URL: https://www.frixlaw.com/law-library/cases/9824963

## Case

- **Full name:** Barclift v. Peinhardt.
- **Court:** Alabama Court of Appeals
- **Decided:** November 15, 1921
- **Citations:** 18 Ala. App. 340; 92 So. 208; 1921 Ala. App. LEXIS 272
- **Precedential status:** Published
- **Opinion:** On rehearing
- **Judges:** Samford
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9824963

## Opinion text

On Rehearing.
Bpon a consideration of this cause on application for rehearing, in connection with *342 the present earnest insistence of appellee that this court committed error in holding “that the written memorandum of sale did not comply with the statute of frauds, so far as being enforceable against appellee,” it is interesting to note that at one time appellee’s counsel agreed with the court, as in the original brief filed in this cause we find the following:
“We concede that the receipt in evidence as shown by Record, page 3, is not sufficient, and, were it not from the other facts, that ‘a portion of the purchase money was paid and the purchaser be put in possession of the land by the seller,’ our case would fall, and the trial court would be held to have committed reversible error.”
In response to this, the court in its opinion said (after noting the concession):
“The only question then left for us to determine under the facts is: Was the plaintiff put in possession of the property, within the meaning of subdivision 5, section 4289, of the Code of 1907?”
It would not now be a very difficult matter to point out several defects in the receipt, each_of which would render it, to our mind, insufficient to meet the requirements of the statute of frauds. But, having been conceded in appellee’s original brief, it will now be unnecessary. Jebeles-Colias Conf. Co. v. Booze, 181 Ala. 456 -462, 62 South. 12 .
If,'then, the purchaser was not put in possession, in such sort as to take the transaction from out the influence of the statute of frauds, the sale was not voidable, but void. In Prestwood v. Carlton, 162 Ala. at page 343, 50 South, at page 260, Mr. Justice May-field, speaking of Flinn v. Barber, 64 Ala. 193 , said:
“Such contracts were absolutely void, and that contracts which were void by express statutory declaration must be mere nullities, must be without legal effect, incapable of conferring any right, or of imposing any duty.”
The foregoing is now the law as we understand it. Prestwood v. Carlton, 162 Ala. 327 , 50 South. 254 ; Scott v. Bush, 26 Mich. 418 , 12 Am. Rep. 311 ; Nelson v. Shelby Mfg. Co., 96 Ala. 515 , 11 South. 695 , 38 Am. St. Rep. 116 .
It being held that there was no sufficient writing, there must have been part payment of the purchase price, which is conceded and a delivery of possession. As will be seen from the original opinion, this possession must be “exclusive, embracing the entire estate contracted to be conveyed.” Was it such? The defendant was a cotenant with his three minor children, and therefore he only had possession jointly with them, and a delivery of his possession was not exclusive of the rights of his minor children. He had no power to bind them in the premises, and the continued possession by plaintiff was for the joint benefit of the minors. If the possession given is required to be adverse and exclusive as to the entire estate contracted, and such seems to be the law, we do not see that this court has committed error in its original judgment, and the application is overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9824963. Public record. Not legal advice.