statute. Nelson v. Shelby Mfg. & Imp. Co., 96 Ala. 515, 11 South. 695, 38 Am. St. Rep. 116.

Having shown that the alleged contract was void on account of being obnoxious to the statute of frauds, and that the indorsement of the check did not import validity into it, and was not, in and of itself, a sufficient memorandum of sale, we shall next consider the question, did the acceptance of the check, the collection of the money upon it, and its retention as purchase money, upon which, of course, may be predicated a verbal promise on the part of the coal company to make the sale, have the effect of avoiding a compliance with the statute? In other words, does the fact of the payment alone of a portion of the purchase money bring the parol contract of sale within the exception prescribed by the statute? The statute requires that "every contract for the sale of lands, tenements or hereditaments or of any interest therein, except leases for a term longer than one year, unless the purchase money or a portion thereof, be paid and the purchaser be put in possession of the land by the seller," must be "in writing and subscribed by the party to be charged therewith or some other person by him thereunto lawfully authorized in writing." It will be noted that not only the payment of the purchase money, or a portion thereof, is necessary, but that the purchaser be put in possession by the seller, in order to come within the exception. Speaking to this point, it was said in Heflin v. Milton, 69 Ala. 357: "The present statute contains an exception of the only parol contract for the lease or sale of lands which can be withdrawn from its operation. The exception is, when the purchase money, or a portion thereof, is paid, and the purchaser put in possession by the seller. The two facts must concur-the payment of the purchase money, or a part thereof, and the placing of the purchaser in possession. The one without the other-the possession without paying part or the whole of the purchase money, or paying the purchase money or any part thereof without letting into possessionwill not satisfy the requirements of the statute. The introduction of exceptions to the statute of frauds-the departure from its letter and policy by courts of equity to prevent parties, through fraud, from escaping performance of contracts they were in sound morality bound to perform-was much regretted. The purpose of the present statute is the exception of the only parol contract for the lease or sale of lands which can be withdrawn from its general words. No other can be introduced or recognized by judicial decision." In the concluding part of the opinion it is further said: "There must be a contract or agreement in writing, or a note or memorandum thereof in writing, subscribed by the party to be charged, or by his agent thereunto lawfully authorized in writing, or the concurring acts of part per

34 So.-3

formance expressed in the statute, to avoid its operation. If there be not, however strong may be the parol evidence that the contract was made, that it was assented to and accepted, the party is not bound, and cannot be charged. There can be no relaxation of the requisitions of the statute without introducing the mischief intended to be avoided." See, also, Manning v. Pippen, 95 Ala. 537, 11 South. 56; Nelson v. Shelby Mfg. & Imp. Co., supra. There is no pretense that the complainant was ever put in possession of the land.

*

The remaining question to be determined is whether the acceptance of the money with full knowledge that it was paid on account of the attempted sale by Montgomery estops the coal company from asserting the invalidity of the contract. In Clanton v. Scruggs, 95 Ala. 279, 283, 10 South. 757, 758, it is said: "One party to an invalid executory agreement is not entitled to hold the other party to the agreement, just as if it had been originally valid, because the latter has received the benefit of a part performance by the former. The fact that one of the parties to such an agreement has acted on the faith of its validity does not raise up an estoppel against the other party to deny that it is binding on him. A mere breach of promise cannot constitute an estoppel in pais. * An executory agreement which is void under the statute of frauds cannot be made effectual by estoppel merely because it has been acted on by the promisee, and has not been performed by the promisor. * Such a rule of estoppel would take the sting out of the statute of frauds, and defeat its manifest purpose." In White v. Levy, 93 Ala. 484, 9 South. 164, Justice McClellan, speaking to this proposition, says: "To admit the doctrine elaborated in argument, that defendant is estopped to set up the statute of frauds here because, while his contract was not in writing, yet he did promise to occupy the premises as a tenant for the term commencing November 1, 1889, and failed to notify plaintiff to the contrary, the consequence being that she lost opportunity to secure another tenant, would be to utterly destroy the statute. It is directed against this class of promises, entailing in most instances just this character of detriment to the promisee. The position is wholly untenable." This principle was fully and distinctly recognized in Nelson v. Shelby Mfg. & Imp. Co., supra, where the purchaser, who had not been put into possession, was allowed to recover back the purchase money he had paid to the seller. Had the seller in that case, who accepted the purchase money from the plaintiff, been estopped to invoke the defense of the statute of frauds by reason of that fact, it is entirely clear that a recovery could not have been had by the plaintiff. Indeed, the main ground upon which his right to do so was placed was that his vendor had not subscribed a note or memorandum in writing, within the requirements

of the statutes, and therefore the contract being void by the very terms of the statute, neither party was bound by it. The contract being unenforceable either at law or in equity, the vendor was deemed to have money which in equity and good conscience belonged to the plaintiff. See, also, Hicks v. Swift Creek Mill Co. (Ala.) 31 South. 947, 57 L. R. A. 720; Junkins v. Lovelace, 72 Ala. 303; Browne on Stat. of Frauds (5th Ed.) § 461. The decree sustaining the demurrer must be affirmed.

1. Where an act of conveyance recites the consideration of the sale to be a certain sum named "and other valuable considerations," it is competent, in an action to annul the sale for lesion beyond moiety, to show by parol testimony what the true consideration was.

2. All the more is this so where the petition charges that duress and threats were practiced on the vendor by the vendee, and that the vendor was misled into signing the act, and where the answer denies any deception or misleading of the vendor and denies the duress and threats averred.

3. Where lesion beyond moiety is alleged to invalidate a sale, the value of the property, in the state in which it was at the time of the sale, is the criterion, and against this is to be measured the considerations received or enjoyed by the vendor, and which constituted the moving cause to him to part with his property, and the value of the same to him at the time.

4. Where the purchase of property by a vendee is shown to have been, really, but a part of a business arrangement planned and agreed to between the parties, and various moving causes entered into the transaction besides the sum or thing named as the consideration of the sale, the action to rescind the sale for lesion beyond moiety will not, under the circumstances here disclosed, be sustained.

(Syllabus by the Court.)

Appeal from Judicial District Court, Parish of Calcasieu; Edmund Denis Miller, Judge. Action by George Linkswiler against J. H. Hoffman. Judgment for defendant, and plaintiff appeals. Affirmed.

McCoy & Moss, for appellant. Cline & Cline, for appellee.

BLANCHARD, J. This was an action to set aside and annul a sale of immovable property on the ground of lesion beyond moiety.

Plaintiff and Perley Stafford were, in the beginning of the year 1900, owners of record of 1,040 acres of rice lands in the Parish of Calcasieu, which they had purchased in 1897 from Valery Ledoux for $12,000.00, to be paid in ten equal annual payments with interest at the rate of 8% per annum from date of sale. They had paid nothing on the land-the instalments maturing in 1898, 1899 and 1900 not having been met.

1. See Evidence, vol. 20, Cent. Dig. § 1912.

Plaintiff and Stafford also owned at that time (the beginning of 1900) each an undivided one-fourth interest in and to a certain pumping plant, canal, etc., situated near their tract of land, known as the Linkswiler, Stafford, St. Germain and Marquet CanalSt. Germain and Marquet being the owners of the other two undivided fourths.

This canal and pumping plant was in a bad way. It had been a disappointment to its owners, and St. Germain, who represented himself and Marquet (a non-resident) had refused to permit the plant to be operated any longer as a going concern.

The lands plaintiff and Stafford owned were dependent for irrigation upon the canal, and without irrigation and drainage the lands were of little value for rice growing.

It thus became necessary for plaintiff and Stafford to buy out the interest of St. Germain and Marquet in the canal and pumping plant in order to save themselves from serious financial disaster which threatened.

But they had no money either to buy out St. Germain and Marquet, nor to enlarge and extend and improve the canal property, which was necessary to make it profitable, nor to meet their indebtedness to Ledoux for the purchase price of their land, nor yet to pay the expenses of cultivating the land in 1900 and subsequent years.

They were, thus, in pressing need of financial assistance. This they sought from the defendant, who referred them to other parties. But they failed to make arrangements with these other parties, and returned to the defendant.

Then it was that the plaintiff, Stafford and defendant entered into a written agreement, which bears the date of January 10, 1900, and which seems to have vaguely embodied the understanding they had come to at that time.

Hoffman would not agree to go in with them in their plans of canal extension and improvement unless they purchased the interest of St. Germain and Marquet in the existing canal and pumping plant, and also secured the right of way for further canal, drainage and irrigation purposes over other lands in the vicinity, so as to carry out the plans which the parties had formed and agreed to between themselves. Therefore, it was that the contract of January 10, 1900, bound plaintiff and Stafford to purchase the St. Germain and Marquet interest in the canal and pumping plant and to secure the additional rights of way required.

And the said contract then stipulated that these interests and rights of way should be transferred to Hoffman without encumbrance, and that there should also be transferred to him, with all encumbrances thereon, the tract of 1040 acres of land, which plaintiff and Stafford had bought from Ledoux, and on which they still owed the entire purchase price of $12,000.00, secured by vendor's lien.

Another obligation which plaintiff and

Stafford assumed in the contract was to erect an additional pumping outfit on the line of the canal, at a place to be agreed on, of sufficient capacity to flood and irrigate certain other lands. Of the expenses, however, of this additional pumping outfit so to be erected, Hoffman was to bear one-half and, in addition, a sum the amount of which was left blank (afterwards ascertained to be $1,600.00) of the other half.

Thus, the greater part of the expense of this second pumping plant was to be borne by Hoffman, though the obligation to erect it was, by the contract, placed on the plaintiff and Stafford.

Then the contract stipulated that Hoffman, who is named in it as the party of the second part, should convey back to Linkswiler and Stafford an undivided one-half interest in and to the property thus acquired by him-lands, canals, pumping plants, rights of way, etc.retaining for himself a vendor's privilege upon the same to secure him the reimbursement of a loan of $8,500.00, which he bound himself to make to them.

There was another stipulation to the effect that as a further consideration for the loan of the $8,500.00, Linkswiler and Stafford were to give Hoffman a bill of sale of certain personal property, and a lien upon the rice crops grown on their lands.

Hoffman made the loan of $8,500.00 to Linkswiler and Stafford, less a discount of 12%, which the parties agreed on, presumably in lieu of interest.

Linkswiler and Stafford purchased the half interest of St. Germain and Marquet in the canal and pumping plant. This they did for $6,000.00, of which $2,000.00 was paid in cash, and it was stipulated that the remaining $4,000.00 was to be paid out of the water rents of the lands watered by the canal.

The $2,000.00 was paid out of the $8,500.00 loan from Hoffman, and the $4,000.00 deferred payment was settled out of the water rents, under Hoffman's management of the canal and pumping plant.

Following their purchase of the interest of St. Germain and Marquet in the canal, Linkswiler and Stafford executed a deed of conveyance to Hoffman of the 1,040 acres of land, and also of the canal and pumping plant.

The act recites the consideration of this transfer to be $8,500.00 "and other valuable considerations to us in hand paid by John H. Hoffman." The act also recites that the land was sold "subject to all incumbrances."

At that time the incumbrances on the land were the $12,000.00 due Ledoux with interest, and unpaid tax liens.

The consideration of this transfer is recited to be "one dollar and other valuable considerations."

The evidence shows that the stock thus sold never passed into the possession of Hoffman, was never demanded by him, and has always remained in the possession and use of Linkswiler and Stafford.

It was a nominal sale only-a mere paper title; a bill of sale.

In the autumn of 1901, some eighteen months subsequent to the sale of the land and canal plant to Hoffman, Linkswiler brought the present action to annul the sale.

It seems that Stafford declined to embark in a law suit with Linkswiler against Hoffman, and this resulted in Linkswiler purchasing the interest of Stafford in whatever rights they had under the contracts which had been entered into with Hoffman. This purchase took place a short time before the present suit was filed.

It took the form of a conveyance from Stafford to Linkswiler of an undivided half interest in and to the 1,040 acres of land and the canal outfit, with subrogation of rights and actions against Hoffman.

In his petition Linkswiler recites his version of the transactions of himself and Stafford with Hoffman, and charges that the latter, knowing of the financial stress upon them, took advantage of the same, and compelled them to agree to the contracts and sales hereinbefore mentioned.

He averred the value of the property conveyed to Hoffman was $50,000.00; that the half interest Hoffman was entitled to retain was worth half of that sum; and that the only consideration he or Stafford ever received for the conveyance of the said half interest to Hoffman was the making of the loan of $8,500.00 to them at the discount of 12%.

He alleged the conveyance was fraudulent, null and void for want of consideration, for lesion beyond moiety and because secured by duress, threats and fear of financial ruin.

Defendant denied all these averments, and set forth at length his version of the transactions between himself and Linkswiler and Stafford.

He represented the same were entered into in good faith, and that plaintiff and Stafford were fully aware of their purport and effect, and entered into the same freely and of their own will; that the land Linkswiler and Stafford had bought from Ledoux, and for which they still owed the entire purchase price, was unproductive and practically valueless without the expenditure of large sums of money for drainage and other improvements, and that this Linkswiler and Stafford were unable to do; that after soliciting aid from others they came to him and it was at their request that he consented to become the owner of one-half of the land and of the

them money to meet their pressing debts, as

sumed payment of half the debt due to Ledoux for the land, consented to use his own credit and skill, and undertake the improvement and management of the canal property, advancing money to meet operating expenses, etc., and undertaking to drain and render available for rice culture the land to be owned by them in common-he one undivided half, they the other-and making certain improvements upon the same; that he carried out all of these undertakings on his part, assumed management of the canal property, made it profitable, whereas it had been unprofitable before, and greatly increased its value; that he became the active manager of the farming and improvement operations upon their joint lands and of the business connected therewith, and expended large sums of money in furtherance of the same; and that these things and obligations on his part, together with the loan of $8,500.00 which he made to them, constituted the true consideration of their transfer to him of a half interest in the land and canal property.

Subsequently plaintiff amended his petition, averring, among other things, that since the suit had been instituted he (plaintiff) had paid to defendant the amount of the loan $8,500.00, made to him and Stafford. He also withdrew the word "fraudulent" where it appeared in his original petition, and for "erroneous and fraudulent" in one paragraph of the petition, he substituted "misleading." The judgment of the court below rejected plaintiff's demand and he appeals.

Ruling-Many matters appear in the record which it is not considered necessary to allude to in this opinion. We notice only those deemed of importance in stating and sustaining the conclusion to which the Court has come.

There was no error on part of the trial judge in permitting the introduction of parol testimony to show what entered into the consideration of the sale made to the defendant by the plaintiff and Stafford on January 27, 1900, which was the sale attacked for lesion beyond moiety.

The act, itself, mentioned $8,500.00 and "other valuable considerations to us in hand paid by Jno. H. Hoffman" as the reason or consideration for making it, and it also mentioned that the land conveyed was sold subject to encumbrances.

It was competent to show by parol, under the allegations of both the petition and answer, what the other considerations were, what the moving cause for making the conveyance was, what the encumbrances resting on the land were. Jackson v. Miller, 32 La. Ann. 432; Dickson v. Ford, 38 La. Ann. 736; Rev. Civ. Code, art. 1900.

Plaintiff averred and showed that the $8,500.00 was really a loan. Defendant admitted this. His object in taking title to one undivided half of the property was to secure reimbursement of the loan of $8,500.00. He

was to reconvey this half to his vendors when they paid the amount of the loan.

The consideration for the conveyance of the other undivided half was not set forth in the act, nor in the preceding contract of January 10th, 1900, and as there were other considerations, and the statement was made in the act of sale that there were, and as the petition of plaintiff charged the consideration set forth in the act was misleading, and that duress, threats, etc., were resorted to by defendant to procure his (plaintiff's) and Stafford's signatures to the same, it was entirely competent to show by parol the real cause superinducing to the sale to defendant of that half of the property which was to be and remain his in full ownership.

The evidence negatives altogether the charge of duress and threats, on part of Hoffman, practiced on the plaintiff and Stafford, and there is no proof sustaining the averment that they were misled into signing the contracts to their detriment, or that there was any error on their part as to the nature and object of the contracts.

Lesion is defined by the law to be the injury suffered by one who does not receive a full equivalent for what he gives in a commutative contract, and the remedy given for this injury is founded on its being the effect of implied error or imposition. Rev. Civ. Code, art. 1860.

To relieve a vendor on account of lesion the consideration he receives for the transfer must be shown to be less than one-half of the value of the immovable property sold. Rev. Civ. Code, arts. 1861, 2589.

And when lesion is alleged to invalidate a sale, the value of the property, in the state in which it was at the time of the sale, must be the criterion (Rev. Civ. Code, arts. 1870, 1871, 2590) and against this must be measured the consideration received or enjoyed by the vendor, and which constituted the moving cause to him to part with his property, and the value of the same to him at the time. And, in this connection, it is permissible to take into consideration the circumstances by which the vendor is surrounded and give weight to the same in determining the value of the property to him at the time he makes the sale. Copley v. Flint, 16 La. 387; Parker v. Talbot, 37 La. Ann. 24.

Numerous witnesses testified as to the value of the property at the time of the sale. Their estimates differ widely. Consideration of the evidence on this point leads us to the conclusion that the District Judge was substantially correct when he adopted $15.00 per acre as the fair value of the land at the time, and $12,000.00 as the value of the canal and pumping plant.

The land at $15.00 per acre had a valuation of $15,600.00. This, added to the value of the canal and pumping plant, gives $27,600.00 as the aggregate sum of the whole prop erty at the date of the sale.

We are firmly convinced this was its full value to Linkswiler and Stafford under the circumstances by which they were then surrounded, and a fair market valuation without regard to those circumstances.

Only an undivided half of the property was really, as we have seen, sold to Hoffman-he holding the other undivided half merely as security for the loan of $8,500.00 made to Linkswiler and Stafford.

The land was then encumbered with $12,000.00 of mortgage indebtedness to Ledoux, part of which had matured and was unpaid. In purchasing a half of the land, Hoffman did so subject to the encumbrance on it. This left him to pay $6,000.00 to Ledoux with interest. The evidence shows he is meeting this debt (one-half of the whole) as it matures.

Then he undertook to pay $1,600.00 more than his half of the expense of erecting an additional pumping plant on the canal.

These two items aggregate $7,600.00, or within $200.00 of the entire value of half of the land at $15.00 per acre. Yet there can be no lesion except where the price given is less than one-half of the value of the thing given.

In the above calculation we have omitted the interest that was running on the notes Ledoux held, and which operated as a mortgage on the land.

Figuring on the sale as a whole, we find the property-land and canal outfit-worth, as shown above, $27,600.00. This made the half interest Hoffman acquired worth $13,800.00.

To constitute lesion beyond moiety the price given must be shown to be less than one-half of the value. The half of $13,800.00 is $6,900.00. Less than the latter sum would be lesion. But, as shown above, the price paid by Hoffman, or which he undertook to pay, was $7,600.00, without calculating accruing interest on the Ledoux notes. This $7,600.00 is alone $700.00 more than the lesion-beyond-moiety figure, and, therefore, the attack on the sale must fail.

But there were other considerations which entered into the transactions between these parties.

Hoffman undertook the superintendence and management of the canal and pumping plant, including the enlargement, extension and improvement of the system.

He entered upon these duties and as the result of his management the property, theretofore unprofitable, became profitable, and out of their share of the profits Linkswiler and Stafford were enabled to pay and did pay St. Germain and Marquet $4,000.00, representing the balance of purchase price of their interest in the canal and pumping plant known as the Linkswiler, Stafford, St. Germain and Marquet canal.

For his management Hoffman received no salary.

Hoffman was wanted into the concern be

cause he was a man of money and credit and he was expected to use and did use his money and credit in advancing the interest and operations of the canal property. This was another consideration entering into the transactions of the parties and a moving cause to consent thereto on part of Linkswiler and Stafford.

Linkswiler accepted the benefit of these dealings with Hoffman for nearly two years before instituting suit. He received his share of the profits under the contract and permitted Hoffman to expend time, skill and money without protest, and as a result Hoffman claims to be $3,417.63 out of pocket.

The sale which is attacked was, really, only a part of a business arrangement between the parties. They were to own jointly the canal property, improve it, extend it, make it more valuable and render it profitable; they were to become owners in indivision of the 1,040 acres of land, which were to be drained and irrigated and made a productive rice farm.

As Stafford testified, the parties participating, himself, Linkswiler and Hoffman, were "to put their shoulders to the wheel" and make the thing pay, or hold to the property until it could be disposed of to good advantage. It was a business venture that they entered upon, and it turned out to be a successful one.

It looks to us like a case where Hoffman's money, credit and skill were invoked to save a failing concern and did save it. The burden of the risk of failure was upon him. He had more to lose than the other two. Their position was already precarious, not to say desperate.

Defendant set up in his answer that Linkswiler and Stafford, in selling the 1,040 acres of land to him by the deed dated January 27, 1900, intended to convey the E. 1⁄2 of Section 21 and the W. 1⁄2 of Section 22, but by error it was written the W. 1⁄2 of S. 21 and the E. 1⁄2 S. 22. He prayed for judgment correcting this error.

The evidence establishes the error complained of, and the trial Judge was about to decree the correction of the same when he discovered that Perley Stafford, one of the vendors, was not a party to the suit,

Whereupon, he ordered the case reopened so that Stafford could be made a party to the suit for the purpose solely of correcting the description of the land contradictorily with him. This was objected to by plaintiff and he complains here of the action of the Judge.

Stafford, himself, did not object. On the contrary, he consented to being made a party defendant for the purpose named, acknowledged service and waived citation, and filed an answer admitting the clerical error in the description of the land and consented to judgment correcting same. Whereupon judgment was pronounced re