Hardy v. Matthews

38 Mo. 121

• Court: Supreme Court of Missouri
• Decided: March 15, 1866
• Status: Published

Opinion

Wagner, Judge,

delivered the opinion of the court.

This was an action brought by the plaintiff against the defendant to recover damages for an alleged breach of contract in the sale of land. On the trial, plaintiff offered to read in evidence the receipts taken for part payment of the purchase money, and stating how and where the balance was to be paid, and also a written acknowledgment of sale of one of the pieces of property, all signed by the defendant, the handwriting being admitted. The property was described as “ a piece of property on Leffingwell avenue, one hundred and thirty-four feet eight inches, and one hundred and' five feet on Washington avenue”; and “one of seven lots, that is to say, one hundred and eighty feet on Washington avenue, and one hundred and thirty-four feet eight inches on Beaumont street.” The defendant objected to the reading of the receipts and the acknowledgment of sale, on the ground that the description of the land was vague and indefinite, and the contract void on that account. Plaintiff stated that he was prepared to prove that defendant owned land answering to the description contained in the receipts, and that he had put plaintiff in possession of it. The court sustained the objection of the defendant, and refused to allow the receipts to be read ; to which decision of the court the plaintiff excepted, and then took a non-suit.

To render a deed or other instrument ambiguous or void for uncertain description, the ambiguity must be patent, and appear on its face; but where the deed or instrument appears certain and without ambiguity, and the uncertainty arises by matter outside of the instrument, then it contains a latent ambiguity, and may be explained by the application of extrinsic evidence.

The most clear and succinct definition of this latter species of ambiguity is given by Sugden. “Ambiguitas latens,” he says, “is that which seems certain, and. without ambiguity, for anything appearing upon the face of the instrument, but there is some collateral matter out of the instrument that breeds the ambiguity”—1 Sug. Vend. 181, Am. ed. of 1836. And as it is raised by extrinsic evidence, it may fairly be dissolved by the same means — id. “ A latent ambiguity is where you show that words apply equally to two different things or subject matters, and then evidence is admissible to show which of them was the thing or subject matter intended”—Smith v. Jeffreys, 15 Mees. & W. 562, per Alderson, B.; S. P. Bates v. Bank, 15 Mo. 309; Webster v. Atkinson, 4 N. H. 21; Tuder v. Tyrrel, 2 Dana, 49 ; Storer v. Freeman, 6 Mass. 440 ; Jackson v. Sill, 11 Johns. 201; Vernor v. Henry, 3 Watts, 385. That the ambiguity in the receipts is latent, is obvious and unquestionable. The description apparent on the face of the writings is sufficiently certain and definite, and it is only when you come to apply the description to the subject matter, that an ambiguity arises. Then it is, for the first time, that the words apply equally to two different things or pieces of property, and then evidence is admissible to show which were the'things or pieces of property intended.

The judgment is reversed, and the causé remanded.

Judge Holmes concurs; Judge Lovelace absent.