Bacon v. Leslie

50 Kan. 494

• Court: Supreme Court of Kansas
• Decided: January 15, 1893
• Status: Published

Opinion

The opinion of the court was delivered by

Horton, C. J.:

It is contended on the part of the defendant below that the trial court committed five material errors. They are alleged as follows: (1) The overruling of the demurrer to the petition; (2) overruling the objection of the defendant to the introduction of any testimony under the pe-. tition; (3) overruling the demurrer of the defendant to the evidence of the plaintiff; (4) excluding material testimony •offered by the defendant; (5) striking out material testimony of the defendant after it had been received.

We will discuss the first, second and third objections together, because the principal question presented thereby is, “ that the description of the land is so indefinite the court could not declare a specific performance.” The property described in the contract is as follows: of section 7—23—7, and all of section 18—23—7; the above property to be free and clear of all incumbrances, and being in Sycamore township, Butler county, Kansas.” The decree for the specific performance described the property in the terms of the contract, and the trial court did not attempt in its decree and judgment to find or adjudge what “J of section 7—23—7” was referred to in the contract, or to" be included in the deed required by the decree of specific performance. The trial court very properly overruled the demurrer to the petition, and the objection of the defendant to the introduction of testimony, upon the ground that the description in the contract “ of \ of section 7 ” was too uncertain and indefinite to decree a specific performance, because the petition alleged, among other things, “ that at the time of- the execution of the agreement the defendant was the owner of section 18 and the s mth half of section 7, all in township 23 south, of range 7 east, in Butler county, Kansas, and that the defendant was then the owner of no other real estate in said section 7 than the last above described; and that said real estate last above described was the land intended to be conveyed as therein set forth, and described as ‘ J of section 7—23—7, and all of section 18—23—7/ and being in Sycamore township, Butler county, Kansas.”

It was said in Hollis v. Burgess, 37 Kas. 494:

1. Specific performance-sufficiency of description. “It is not essential, however, that the description should be given with such particularity as to make a resort to extrinsic evidence unnecessary. If the designation is so definite that the purchaser knows exactly what he is buying, and the seller knows what he is selling, and the land is so described that the court can, with the aid of extrinsic evidence, apply the description to the exact property intended to be sold, it is enough.” (Fry, Spec. Perf., 3d ed., § 325; Pom. Contr., § 90; Fowler v. Redican, 52 Ill. 405; Bowen v. Prout, 52 id. 354.)

In Hurley v. Brown, 98 Mas. 545, the written contract described the property as “a house and lot of land situated on Amity street.” There being several such, parol evidence was admitted to show that there was one only which the defendant had any right to convey, and that the parties had been in treaty for the sale and purchase of it. The court held that the subject-matter of the contract might thus be identified; and, when so ascertained, the writing might be construed to apply to it, and was thus made sufficiently definite and certain for specific enforcement in equity.

In Mead v. Parker, 115 Mass. 413, the description was “a house on Church street.” The court said:

“ When all the circumstances of possession, ownership, situation of the parties, and of their relation to each other and to the property, as they were when the negotiations took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written contract or memorandum of their agreement. That parol evidence is competent to furnish these means of interpreting and applying written agreements, .is settled by the uniform current of authorities.”

In Waring v. Ayers, 40 N. Y. 357, the description was “two lots owned by me in 116th street, N. Y., between Eighth and Ninth avenues; said lots being 25 feet front by about 75 feet deep.—E. Ayeks.” The court said:

“Now, if no other lots will answer that description, there is no want of certainty in respect to the subject, i. e., the property to be conveyed. The referee finds that no other lots than those named in the judgment will answer that description, and that those named in the judgment do answer the description precisely. I know of no: rule of law or equity which' requires the employment of one set of terms or form of words to describe real estate proposed to be conveyed. An agreement to sell and convey the farm in the town of Bath, belonging to me, is definite and certain the moment it appears which farm in the town of Bath does in part belong to me.” (Tethrow v. Anderson, 63 Mo. 86.)

2. Description of land, extrinsic evidence to identify. While the allegations' in the petition were sufficient, if proven upon the trial, for a specific performance, we do not think there was evidence received by the court identifying half of section 7—23—7. The trial court, for some reason not apparent, improperly refused to permit the plaintiff below to show that at the time of the execution of the contract Bacon owned the south half of section 7—23—7 east, in Sycamore township, Butler county, and that he was the owner of no other real estate in said section 7 than the south half of said section. If this evidence had been received, the contract as to the half of section 7 would have been sufficiently identified for specific performance. No motion was made upon the part of the plaintiff below for a new trial, and no cross-petition in error is filed in this court. We therefore cannot correct any rulings of the trial court not complained of and not here upon proper proceedings for reversal. As we are neither informed from the contract or evidence received what half of section 7 was meant, Whether the north half, the south half, the east half, or the west half, the description in the record is too indefinite and uncertain.

3. Contract-reformation—pleading. It is.urged by counsel on the part of plaintiff below, that if the description of the half of section 7 is .too defective, it may be corrected by another or further action for that purpose, and therefore that the judgment should stand. Some cases are cited apparently supporting this view. (Bean v. Valey, 2 Mo. 126; Cooper v. Laney, 39 Ala. 338.) Courts, as a rule, abhor a multiplicity of suits between the same parties growing out of the same transactions. We think the better rule to be that, where a contract describing land to be conveyed is indefinite and uncertain, and therefore is to be reformed on account of the mutual mistakes or omissions of the parties, or where it can be made sufficiently definite and certain by extrinsic evidence, the petition should show all the facts, and what is desired before a specific performance is decreed; and all the matters in controversy, both as to the reformation of the contract, if one is necessary, or the identification of the property by extrinsic evidence, should be settled and disposed of in the same action. Upon the trial, it was urged in the presentation of evidence on the part of the plaintiff below that the description in the written contract of the half of section 7 should have been the south half of said section 7; that Bacon gave to the party writing the contract the description as the “south half of section 7,” but by inadvertence or mistake of the scrivener it was written .“'half of section .7.” If this be true, plaintiff below might have amended his petition so as to have had the contract reformed, with the .proper description as given by the parties to the scrivener.

The claim made upon the part of the defendant below, that if the description of “one-half of section 7” is too indefinite or uncertain in the absence of extrinsic evidence to be enforced, therefore all the descriptions in the contract must be disregarded and the contract itself treated as a nullity, is not reasonable or equitable. If plaintiff below is willing to accept, in payment of his property described in the contract, “all of section 18—23—7, in Sycamore township, Butler county, in this state,” the defendant below cannot complain because of the indefiniteness or uncertainty of “one-half of section 7,” or of the failure of the plaintiff below to obtain a deed for all the property he brought his action to recover. “It is a rule of construction, that where there is a doubt as to the construction of a deed, it shall be taken most favorably for the grantee. Whence, if there are two descriptions in a deed of the land conveyed, and they do not coincide, the grantee is at liberty to elect that which is most favorable to him.” (Sharp v. Thompson, 100 Ill. 447; Melvin v. Proprietors of Locks, 5 ; 3 Washb. Real Prop. 628, 629; Esty v. Baker, 50 Me. 331; Wat. Spec. Perf., § 396.)

The case of Becker v. Mason, 30 Kas. 697, referred to, is not applicable. In that case, the contract was not signed by the party to be charged. In such a case, the contract must be proved, if proved at all, by some written note or memorandum of the contract signed by the party to be charged. The infirmity in that case vitiated and destroyed the whole of the contract. In this case, the memorandum of the contract is signed by the party to be charged, and the description of a portion of the land therein is definite and certain ; a part is indefinite and uncertain, in the absence of extrinsic evidence, but the contract may be held valid as to that which is properly and sufficiently described.

Complaint is also made that the plaintiff below failed in his evidence, because of some alleged defects in h'is abstract of title. An abstract of title was furnished within the time required by the contract, and a warranty deed was also executed and delivered according to the contract. Defendant below refused to make any conveyance by warranty deed or otherwise; made no objections to the abstract or called attention to any defects therein. It does not appear from the record that the defects now alleged in the abstract or deed were called to the attention of the trial court. On the other hand, it does appear that the principal defenses in the trial were the indefinite description of the property, a contemporaneous parol agreement between the parties, and that the signature of the defendant to the contract was obtained by fraud.

We perceive no material error in excluding or striking out testimony. There was no proof of any consideration for any new or parol contract changing the original contract of the parties. If the parol contract was made contemporaneously with the contract, as a part thereof, or in connection therewith, it could not be proved, if it altered, varied or contradicted the written contract. (Schoen v. Sunderland, 39 Kas. 758.) The testimony shows that the defendant below resided in Kansas City, Mo., where the property he was trading for is situated, and had resided there for over 20 years, and that he lived about three-fourths of a mile from the same. It further appears from his testimony that he had seen and had had an opportunity to examine the property before he signed the contract; therefore, we do not think any fraud was established, either to obtain his signature to the contract or otherwise. (Wat. Spec. Perf., §317; Story, Eq. Jur., §200, and sub.; Dyer v. Hargrave, 10 Ves. 505; Pratt v. Phillbrook, 33 Me. 17; Hough v. Richardson, 3 Story, 659; Langdon v. Green, 49 Mo. 363.)

If the plaintiff below will, within 30 days, file in writing in the district court of Butler county his written consent to a modification of the judgment rendered in this case, so as to omit therefrom “one-half of section 7—23—7, in Sycamore township, Butler county, in this state,” the judgment will be allowed to stand as thus modified; otherwise, the judgment will be reversed, and the cause remanded for a new trial. If plaintiff below accepts the modification of the judgment as suggested, the costs in this court will be divided; if he does not so accept, a reversal will be ordered, with costs.

All the Justices concurring.