Arrendale v. Dockins

143 S.E. 570, 166 Ga. 62, 1928 Ga. LEXIS 218

Opinion

Russell, C. J.

(After stating'the foregoing facts.)

The controlling question presented by the demurrer is whether the description of the land alleged to have been bought by Arrendale is sufficient to render the alleged contracts enforceable. The plaintiff in error insists that the writings upon which the plaintiff based his right to specific performance are void by reason of the fact that the description of the land is so vague and indefinite as to amount to practically no description at all. As to defective descriptions of property the sale of which is required by the statute of frauds to be evidenced by writing, the doctrine embodied in the maxim id certum est quod certum reddi potest seems to have been generally applied by this court since its earliest history. If there is enough in the writing evidencing a sale of land, or the creation of a lien on real or personal propert]'-, to afford a key which, aided by extrinsic evidence, will make certain that which is apparently uncertain, then the description of the property is sufficient. Glover v. Newsome, 132 Ga. 797 (3) (65 S. E. 614), citing Singleton v. Close, 130 Ga. 716 (2) (61 S. E. 722). See also Petretes v. Atlanta Loan &c. Co., 161 Ga. 468 (131 S. E. 510), and cit. In the first contract signed by Arrendale the description must be admitted to be extremely meager. It is no more than “tract No. 15 in block-.” This clearly would be an insufficient description to identify the land alleged to have been purchased; but this is not all that is in the contract, for the contract says that Arrendale has this day purchased tract number 15 of J. B. Doekins (it being stated that tract number 15 is the property of J. B. Doekins). In Nichols v. Hampton, 46 Ga. 253 (3) it was held that “A paper, providing for a lien on a ‘bay mare/ and showing that the mare was purchased by the mortgagor from the mortgagee, is a sufficient description of the property mortgaged.” In delivering the opinion of the court Judge McCay said: “True, the description will apply to any bay mare, but there is another description added, to wit: the bay mare sold by the plaintiff to Johnson.” This case was cited as controlling by Mr. Justice Lamar in Thomas Furniture Co. v. T. & C. Furniture Co., 120 Ga. 879, 881 (48 S. E. 333), in which he said: “Hence the decisions recognize that very meager terms of identification may be sufficient. Upon an analysis of the cases it will be seen that generally the main element of description was to be found in the parol evidence identifying the article as that referred to in the mortgage. The courts lay hold of slight circumstances to supplement the descriptive words.” The Nichols case was also cited in Bennett v. Green, 156 Ga. 572, 575 (119 S. E. 620), in which Mr. Justice Hines, delivering the opinion of the court, ruled that “The description of property in a deed is sufficiently certain when it shows what property the grantor intended to convey and makes its identification practicable. Andrews v. Murphy, 12 Ga. 431; Price v. Gross, 148 Ga. 137 (96 S. E. 4).” See also Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267); Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Singleton v. Close, supra; Reeves v. Allgood, 133 Ga. 835 (3) (67 S. E. 82) ; Napier v. Little, 137 Ga. 242 (73 S. E. 3, 38 L. R. A. (N. S.) 91, Ann. Cas. 1913A, 1013).

It would be useless to recapitulate and discuss the many special and general demurrers filed by the able counsel for the plaintiff in error, though in view of the strenuous insistence of counsel upon each and every ground we have carefully considered each and every one of these demurrers. However, being firmly convinced that the description in the two contracts which were contemporaneously entered into supplies a key which authorizes the introduction of extraneous evidence to complete the defective description, we are of the opinion that the lower court did not err in his judgment overruling the demurrers. The court properly sustained the demurrer to so much of the petition as sought to collect attorney’s fees, and also paragraph 2 of the amendment of August 1, 1925, relating to the advertisement of the property; and this really left only one question before the court, to wit, whether there was in the written contracts embodied in the pleadings enough to so identify the land which was the subject-matter of the sale and purchase as to permit resort to aliunde proof to perfect a more exact description as a means of enforcing plaintiff’s equitable right to specific performance. It is argued that there “is nothing to show in what State, county, district, or land lot out of which tract number 15 in block-is to be or has been carved,” but this court answered a similar argument under the same circumstances in Valdosta Machinery Co. v. Finley, 164 Ga. 706 (139 S. E. 337), adversely to the contention. Moreover, unless this court was wrong in its decisions in Nichols v. Hampton, Thomas Furniture Co. v. T. & C. Furniture Co., and Bennett v. Green, supra, the statement in the writing to the effect that tract “number 15 in block-” had that day “been bid off by Arrendale,” amplified by the statement that he was on the ground, that the lot was staked off, and that he had a copy of the plat in his hand at the time he bid, seems to us conclusive that the would-be purchaser knew the precise lot upon which he bid, its precise location, the State and county in which it was situated, and at least its approximate dimensions. The demurrers to the amendment which the plaintiff was allowed to file are strongly urged. It is insisted that there is no refer ence in the contract to the plat, and that neither of the two writings which were accepted by Arrendale (and one of them signed by him) refers to the other. Granting that generally a plat may not be admitted to supply descriptive averments in a deed which contains no reference to the plat, and granting that as a general rule distinct negotiations at times different from that at which a defective instrument was written in an effort to comply with the statute of frauds would be inadmissible, the amendments which the court permitted in this case do not fall within the general rule to which we have just referred. The two written memoranda in the instant case were contemporaneous; they refer to the same transaction, and describe the same land, except that one of them refers to portions of certain land lots, while the other has no such reference. In delivering the opinion of this court in Singleion v. Glose, supra, Mr. Justice Evans quoted from Frye on Specific Performance, § 327, the rule that “Where it is necessary to call in extrinsic evidence, the connection of the subject-matter of the contract and the thing in respect of which specific performance is sought must be pleaded, and supported by sufficient evidence,” and quoted approvingly the dictum in Harper v. Kellar, 110 Ga. 420 (35 S. E. 667), that this rule is “clearly in consonance with sound law and sound sense.” The memoranda show that Arrendale bought the land. By demurrer the allegation that the land described in the amendments was the same land is admitted. In Beckwith v. Talbot, 95 U. S. 289 (24 L. ed. 496), the Supreme Court of the United States held: “It is not an absolute rule that collateral papers made by a party, which are adduced in evidence against him to supply the want of his signature to a written agreement, required by the statute of frauds to be ‘ subscribed by the party chargeable therewith,’ should on their face, and without the aid of parol proof, sufficiently demonstrate their reference to such agreement.” The argument of Mr. Justice Bradley in this case, that such a construction of the statute of frauds would produce more fraud than it would prevent, is unanswerable. It is quite apparent that if collateral papers may be adduced to supply the want of a signature to a writing required by the statute of frauds, upon the same principle resort may be had to parol evidence to perfect mere description of the property in a writing which has been signed. So we are of the opinion that the court did not err in overruling the demurrers to the amendments completing the identification of the land referred to in the contract by giving a full description thereof. The demurrer to the portion of the petition referring to the plat was properly overruled, because it alleged that the plaintiff in error had in his hands at the time of his bid a copy of the plat, and by demurrer this is admitted to be true.

Judgment affirmed.

All the Justices concur.