Opinion of the court by
McAtee, J.:
The evidence in the cause showed that, at the time of the execution of the contract, A. J. Blackwell borrowed $5,000 from the First National Bank, at Coffeyville, Kan.; that plaintiff in error endorsed his note therefor, and that cattle were purchased with the whole ■of the proceeds of this loan, and a mortgage upon the cattle given to the bank for its security. The note was dated November 27, 1890, and was payable ten months -after date. It remained unpaid after maturity, and the cattle were taken possession of by the bank, with the ■approval of Blackwell, who aided in their collection and sale, and the proceeds were applied as credits upon the note; $3,128.18 being paid November 11, 1891, $620 on • June 23, 1892, and $200 on November 16, 1892; making . a. total of $3,94818. These were all of the cattle which could be found, except from one to four head (it does not • distinctly appear, from the evidence, which,) the proceeds of which were received by A. J. Blackwell. The venture in the cattle was a complete failure. There were no profits, but a loss, which, including principal •and interest, amounted to $1,113.76, which was paid by Ferguson. And this sum, together with other sums due from Blackwell to Ferguson, was included in the suit brought in the district court of Kay county by the plain-tiff, Ferguson, against the defendant, Blackwell, and in which the jury found a verdict in favor of the plaintiff, Ferguson, and against the defendant, Blackwell, in the sum of $2,777.50, for which judgment was rendered, and -which is not now due to the plaintiff.
It is conceded that the contract provided that in the investment of the loan of $5,000, for which Ferguson furnished his aid by endorsement, Ferguson should have one-half of all the profits made “from the handling of the cattle, or in any other business” that Blackwell might engage in. There were, however, no profits in the business, but a decided loss, which was borne by Blackwell alone, and for which the bank has been paid, and Ferguson recouped and saved harmless. It also appears that all of the amounts formerly paid, prior to the execution of the contract by Ferguson for Blackwell, and which were due from the latter to the former at the time of the rendition of the judgment of $2,777.50, were included in this judgment; and it is therefore manifest that not only the loan of January C, 1891, which furnished the special occasion for the contract, has been paid, but that the “other considerations” set forth in the contract have also been discharged and paid, and that Ferguson having secured payment to himself fully for the losses formerly made by him, or by reason of his, personal credit to Blackwell, and they haying now been fully discharged, an interpretation of the contract is now sought for by Ferguson from this court whereby the contract of January 6, 1891, shall be so construed that he may demand and receive from Blackwell one-half of all profits made, not only from the handling of cattle, but from any other business which he (Blackwell) may hereafter “engage in.”
Since the execution of the contract, and the venture in the cattle business, — unfortunately for Blackwell, and for which Ferguson has suffered no loss, — the Cherokee Strip has been opened for settlement, September 16, 1893, and Blackwell has abandoned his residence at
Chelsea, I. T., where he was possessed of some personal property, and possessory rights in several hundred acres of real estate, held under such terms and occupancy as are conceded by the Cherokee Nation to white settlers there, and has settled at Blackwell, in Kay county, and there acquired a large and profitable interest in real estate; and the court is now asked to interpret this contract to apply to these interests, and to declare that one-half of all these later acquisitions of Blackwell belonged to Ferguson, and to make that declaration under the doctrine of specific performance.
There is no such description in the contract of “landed interests” belonging to Blackwell for which this court could enter a decree for specific performance. The rule is that a contract for the conveyance of lands, which a court of equity will specifically enforce, must be certain in its terms, and that certainty required has reference to both the description of the property and the estate to be conveyed; and, accordingly, wherever the property cannot be identified, as the property described in the contract, specific performance will be denied.
(Preston v. Preston,
95 U. S. 200.)
It is said that, where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible, but that the court will never receive parol evidence both to describe the land, and then apply the description.
(Baldwin v. Kerlin,
46 Ind. 426;
Ferguson v. Staver,
33 Pa. St. 411.)
And, if a decree for the specific performance of a contract relating to real estate is to possess any value, the
contract must describe the land involved with such accuracy and clearness that it can be identified, its quantity known, and its boundaries determined, beyond the possibility of future controversy.
(Ferris v. Irving,
28 Cal. 645;
Day v. Griffith,
15 Iowa, 104;
Jordan v. Deaton,
23 Ark. 704;
Shelton v. Church’s Adm’rs,
10 Mo. 774;
Wiegert v. Franck,
56 Mich. 200, 22 N. W. 303; 22 Am. & Eng. Enc. Law, 963-968.)
Specific performance of a contract for the sale of lands will not be enforced unless the parties have described and identified the particular tract, or the contract furnishes the means of identifying with certainty the land to be conveyed.
(Tedford v. Trimble,
87 Mo. 226;
Ferris v. Irving,
28 Cal. 645.)
„ The doctrine is thus stated in order that the position ■of the court may be made clear upon the. contention of the plaintiff in error as broadly as it is asserted. But when the contract pleaded upon and sought to be enforced is dated at Vinita, I. T., and provides for a bill •of sale “upon all my land and interest in the Territory,” it is manifest that the Indian Territory is meant, and, whatever the effect of this contract might have been in the Indian Territory, that it is not applicable to any landed interests in Oklahoma Territory. We think that -the same application should be given to that provision of the contract which states that the bill of sale is to apply to one-half of all profits made from the “handling of cattle, or any other business that I may engage in,” that it should be restricted in its terms to such operations as Blackwell might have engaged in in the Indian Territory, and that its purpose must have been understood at the time of its execution by both parties to
apply only to such profits asi .should he made at the time of the handling of the cattle, or any other business ■which Blackwell should engage in by the use of $5,000 borrowed from the. bank at Coffeyville.
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Opinion of the court by
McAtee, J.:
The evidence in the cause showed that, at the time of the execution of the contract, A. J. Blackwell borrowed $5,000 from the First National Bank, at Coffeyville, Kan.; that plaintiff in error endorsed his note therefor, and that cattle were purchased with the whole ■of the proceeds of this loan, and a mortgage upon the cattle given to the bank for its security. The note was dated November 27, 1890, and was payable ten months -after date. It remained unpaid after maturity, and the cattle were taken possession of by the bank, with the ■approval of Blackwell, who aided in their collection and sale, and the proceeds were applied as credits upon the note; $3,128.18 being paid November 11, 1891, $620 on • June 23, 1892, and $200 on November 16, 1892; making . a. total of $3,94818. These were all of the cattle which could be found, except from one to four head (it does not • distinctly appear, from the evidence, which,) the proceeds of which were received by A. J. Blackwell. The venture in the cattle was a complete failure. There were no profits, but a loss, which, including principal •and interest, amounted to $1,113.76, which was paid by Ferguson. And this sum, together with other sums due from Blackwell to Ferguson, was included in the suit brought in the district court of Kay county by the plain-tiff, Ferguson, against the defendant, Blackwell, and in which the jury found a verdict in favor of the plaintiff, Ferguson, and against the defendant, Blackwell, in the sum of $2,777.50, for which judgment was rendered, and -which is not now due to the plaintiff.
It is conceded that the contract provided that in the investment of the loan of $5,000, for which Ferguson furnished his aid by endorsement, Ferguson should have one-half of all the profits made “from the handling of the cattle, or in any other business” that Blackwell might engage in. There were, however, no profits in the business, but a decided loss, which was borne by Blackwell alone, and for which the bank has been paid, and Ferguson recouped and saved harmless. It also appears that all of the amounts formerly paid, prior to the execution of the contract by Ferguson for Blackwell, and which were due from the latter to the former at the time of the rendition of the judgment of $2,777.50, were included in this judgment; and it is therefore manifest that not only the loan of January C, 1891, which furnished the special occasion for the contract, has been paid, but that the “other considerations” set forth in the contract have also been discharged and paid, and that Ferguson having secured payment to himself fully for the losses formerly made by him, or by reason of his, personal credit to Blackwell, and they haying now been fully discharged, an interpretation of the contract is now sought for by Ferguson from this court whereby the contract of January 6, 1891, shall be so construed that he may demand and receive from Blackwell one-half of all profits made, not only from the handling of cattle, but from any other business which he (Blackwell) may hereafter “engage in.”
Since the execution of the contract, and the venture in the cattle business, — unfortunately for Blackwell, and for which Ferguson has suffered no loss, — the Cherokee Strip has been opened for settlement, September 16, 1893, and Blackwell has abandoned his residence at
Chelsea, I. T., where he was possessed of some personal property, and possessory rights in several hundred acres of real estate, held under such terms and occupancy as are conceded by the Cherokee Nation to white settlers there, and has settled at Blackwell, in Kay county, and there acquired a large and profitable interest in real estate; and the court is now asked to interpret this contract to apply to these interests, and to declare that one-half of all these later acquisitions of Blackwell belonged to Ferguson, and to make that declaration under the doctrine of specific performance.
There is no such description in the contract of “landed interests” belonging to Blackwell for which this court could enter a decree for specific performance. The rule is that a contract for the conveyance of lands, which a court of equity will specifically enforce, must be certain in its terms, and that certainty required has reference to both the description of the property and the estate to be conveyed; and, accordingly, wherever the property cannot be identified, as the property described in the contract, specific performance will be denied.
(Preston v. Preston,
95 U. S. 200.)
It is said that, where a sufficient description is given in the contract, parol evidence may be resorted to in order to fit the description to the thing, but where an insufficient description is given, or where there is no description, such evidence is inadmissible, but that the court will never receive parol evidence both to describe the land, and then apply the description.
(Baldwin v. Kerlin,
46 Ind. 426;
Ferguson v. Staver,
33 Pa. St. 411.)
And, if a decree for the specific performance of a contract relating to real estate is to possess any value, the
contract must describe the land involved with such accuracy and clearness that it can be identified, its quantity known, and its boundaries determined, beyond the possibility of future controversy.
(Ferris v. Irving,
28 Cal. 645;
Day v. Griffith,
15 Iowa, 104;
Jordan v. Deaton,
23 Ark. 704;
Shelton v. Church’s Adm’rs,
10 Mo. 774;
Wiegert v. Franck,
56 Mich. 200, 22 N. W. 303; 22 Am. & Eng. Enc. Law, 963-968.)
Specific performance of a contract for the sale of lands will not be enforced unless the parties have described and identified the particular tract, or the contract furnishes the means of identifying with certainty the land to be conveyed.
(Tedford v. Trimble,
87 Mo. 226;
Ferris v. Irving,
28 Cal. 645.)
„ The doctrine is thus stated in order that the position ■of the court may be made clear upon the. contention of the plaintiff in error as broadly as it is asserted. But when the contract pleaded upon and sought to be enforced is dated at Vinita, I. T., and provides for a bill •of sale “upon all my land and interest in the Territory,” it is manifest that the Indian Territory is meant, and, whatever the effect of this contract might have been in the Indian Territory, that it is not applicable to any landed interests in Oklahoma Territory. We think that -the same application should be given to that provision of the contract which states that the bill of sale is to apply to one-half of all profits made from the “handling of cattle, or any other business that I may engage in,” that it should be restricted in its terms to such operations as Blackwell might have engaged in in the Indian Territory, and that its purpose must have been understood at the time of its execution by both parties to
apply only to such profits asi .should he made at the time of the handling of the cattle, or any other business ■which Blackwell should engage in by the use of $5,000 borrowed from the. bank at Coffeyville.
The removal of Blackwell from the Indian Territory to Oklahoma years subsequently, and his acquisition of property in this Territory, could not have been in contemplation at the time of the execution of the agreement. The venture with the $5,000 thus' borrowed by the aid of Ferguson having been unfortunate, and Blackwell' having suffered a loss of over $1,100 thereby, and Ferguson having been entirely recouped and saved from loss in that transaction, and having been paid for the “other considerations” stated in the contract, this court will not aid the plaintiff in error in stretching the terms, of the agreement, and in giving to it an interpretation which would make it applicable to all profits which Blackwell has since its execution, or may henceforth engage in, as long as he may live — an interpretation which would be hard, unfair, and unconscionable in the extreme1 — and equity will refuse such relief. (22 Am.
&
Eng. Enc. Law, 1029.)
Even if it could be held that the contract relied upon here related to all profits made by Blackwell outside of the Indian Territory as well as within it, and outside of the loan of $5,000 and with other capital, and notwithstanding the losses sustained and incurred by him alone in the transaction, and if the contract should be susceptible to the constrction sought to be placed upon it by the plaintiff in error (that is, that it applied to all the profits which Bleclcwell might make after the execution of the note for $5,000 and other considerations,
which had all been discharged by Blackwell) the contract is so manifestly overbalanced in favor of the plaintiff in error, and so unfair, that it will not receive the aid of a court of equity to carry it out.
It was said by Chief Justice Marshall in
Cathcart v. Robinson,
5 Pet. 264 (the whole court agreeing with him)* that: “The difference between that degree of unfairness which will induce a court of equity to interfere actively by setting aside a contract, and that which will induce a court to withhold its aid, is well'settled. It is said that the plaintiff must come. into court with clean hands,, and that a defendant may resist a bill for specific performance by showing that under the circumstances the plaintiff is not entitled to' the relief he asks. If the contract is unconscientious or unreasonable, or there has-been an unfairness, the court will refuse itsi aid,” — and that: “If to any unfairness a great inequality between-the price and value be added, a court of chancery will not afford its aid.” These remarks are applicable to the circumstances of thi-s case, and to the., relief sought here. The judgment of the court below is affirmed.
Hainer, J., having presided in the court below, not sitting: all of the other Justices concurring:.