Helmik v. Pratt

139 A. 559, 153 Md. 685, 1927 Md. LEXIS 85

Opinion

Offutt, J.,

delivered the opinion of the Court.

Katie Mladejovsky, a resident of Baltimore County, died on January- 8th, 1926, leaving a will, executed in due form, in which she named John J. Pratt and Anna Helmik executors. The will was probated in ordinary course and, Anna Helmik having died, Pratt qualified as sole executor.

After Pratt had qualified as executor, John Helmik, the .appellant, demanded that he convey to him, Helmik, a lot -of ground, which he alleged Mrs. Mladejovsky had sold to him by a valid and enforceable contract. Pratt refused to comply with that demand, and on March 15th, 1927, Helmik filed, in'the Circuit Court for Baltimore County, a bill for the specific performance of the alleged contract, against the executor. The defendant demurred to the bill and, the demurrer having been overruled, he answered. The case was tried in open court, and, at the conclusion of the complainant’s case, the court declined to hear evidence for the respondent, and later, on May 31st, 1927, signed a decree dismissing the bill. The appeal is from that decree.

The contract referred to in the hill of complaint is in the following form:

“Dec. 16, 1926.

“This is to certify that I, the 'undersigned on the above date sold to John Helmik, one unimproved lot located in Balto. County for the stun of $750.00, seven hundred and fifty dollars for which I have received this date the sum of $600.00, six hundred dollars, the balance to be paid in ninety days from above date.

“Description as follows:

“75 yards facing Back River and running north from a fence surrounding a place known as Charles Wright, thence west 75 yards, parallel with Eastern Ave., thence south 75 yards, thence east to place of beginning. The said lot is a part of what was formerly known as G-ilmor property, Eairy Grove and Columbus Park.

“Katie Mladejovsky.

“Test:

“Robert H. Lafferty.”

Although the defendant intimates rather than charges in his answer that the signature attached to the contract, and purporting to be that of Mrs. Mladejovsky, is not in fact her signature, the only evidence offered at the trial shows that it was. It further appeared from the testimony of Robert II. Lafferty, the witness to the contract, that it was executed under the following circumstances:

• Lafferty, at one time a policeman, is now in the “collection and investigating business” and has, he said, “often made out contracts and leases for people, bills of sale, etc.” He knew Mrs. Mladejovsky and was a frequent visitor at her home. In the conrse of his testimony he said that, on or about December 16th, 1926, he “received a telephone call at my home at about ten thirty in the morning, in whicli she requested me to come to her home, that she had some writing for me to do, the words she used, and I got on the car that leaves Holliday and Baltimore Streets eleven o’clock, and I suppose I arrived there about 11.20 or 11.25 in the morning. * * * She said, Mr. Lafferty, I want you to do some wilting for me, and I said, 'What is it, Mrs. Mollie ?’ She said, 'I sold John a piece of land, I want you give him a receipt’; I said, 'All right, Mrs. Mollie, what piece of land?’ She said, 'the piece of land located down there at Charlie Wright’s place,’ and I said, 'It would have to be described,’ and I immediately went down with John and Mrs. Mollie and looked at that piece of land, and I described the land as near as I could, as I knew what I thought was looking in an eastern direction which I found out from the survey filed. I was a little northeast and she told me seventy-five yards each way, I thought it was peculiar, seventy-five yards, but I didn’t question her, and she said to give him seventy-five yards on Back River and seventy-five yards in a northern direction and seventy-five yards in a southerly direction and seventy-five yards in an eastern direction to the point of beginning, and I wrote the contract as follows: "Beginning at a point at a fence facing Back River and a place called Charles Wright’s place, that was as near as I could describe it, and, I said, running north parallel with Back River seventy-five yards, thence in a westerly direction seventy-five yards, and thence in a southerly direction, seventy-five yards and thence in an eastern direction seventy-five yards to the point of beginning seventy-five yards, the property known as Gilmor property, Eairy Grove and also as Columbus Park. I asked her if that was correct. * * * We went on the property and around it both and Mr. Helrnik, John, contemplated getting that property. Q. Did they both agree as to where the property was located ? A. Absolutely. Q. Was that definitely understood by both ? A. Certainly. She showed the land to me and there was nothing else to do; seventy-five square yards, that is all there was to it.” He also said that the land described in the contract was the land he went over with her, and that the lot sold to Helrnik was part of a larger tract of forty-eight acres owned by Mrs. Mladejovsky.

There was other evidence offered by the complainant tending to corroborate Lafferty, but, since it adds nothing to the legal effect of that to which we have referred, no further reference to it need be made.

After that testimony had been offered, Albert E. Pohmer, a surveyor, who had “worked” all over the land in controversy, was called, apparently to prove, (1) that the land described in the contract could be identified and located, and (2) its value. He testified that he had prepared a plat from field notes of an actual survey which he had made of the property; that he had a copy of the contract, and “from that copy” he “went over the land.” He was then asked whether the following description of the property, as given in the bill of complaint: “Beginning at a point on the shore line of Back Eiver, where the southeasternmost outline of the whole tract of land, described in the deed recorded among the Land Eecords of Baltimore County, in Liber W. P. C. No. 331, folio 197, would intersect the shore line of said river and running thence from said place of beginning and binding on the outlines of the land described in said deed south 28 degrees 54 minutes west 225 feet, thence leaving said outline and running north 40 degrees 35 minutes west 225 feet, thence north 31 degrees 19 minutes east 225 feet, to the shore line and waters of Back Eiver, south 21 degrees 31 minutes east 100 feet and south 54 degrees 44 minutes east 125 feet to the place of beginning,” was prepared by him “from the contract.” An objection to that question was sustained, and the complainant then offered to prove that “the contract of sale between John IJelmik and Katie Mladejovsky admits of no difference of opinion; that the description of the land mentioned in this contract is easily ascertainable and that the said contract is not vague and uncertain, but is definite in its terms and easily understood and described.” That offer was also overruled and exceptions noted to these rulings. The complainant then rested, and the court announced that it would write an opinion on the complainant’s testimony, and subsequently a decree was filed dismissing the bill. The reasons for that ruling are stated very clearly and forcibly in the court’s opinion, in which he says:

“The trouble with this description is there is no beginning point. FTeither are there any calls — such as to a tree; or a stone or a “cove. So that the whole description is based on the point of beginning. If there is no beginning point, there is no description. And the first line of this property Tuns north from a fence surrounding a place known as Charles Wright’s.’ So that this northerly line could run from any point along this fence, no matter how long this fence might be.

“Surely this is entirely too general, vague and indefinite. I hold, therefore, that the description in exhibit one, which is the contract, is really no description' at all, for as it begins nowhere it goes nowhere and describes nothing.

“If the description had been such that a surveyor could have located, defined and described the land from it,. I would have permitted the surveyor to give in evidence the result of his survey. King v. Kaiser, 126 Md. 218.”

From this statement of the case it is apparent that the appellant’s right to relief depends upon two propositions: (1) That the contract executed by Mrs. Mladejovsky is sufficiently definite to enable the court to identify and locate definitely and conclusively the land to which it refers; and (2) that the testimony of the surveyor offered to show that the land described in the bill of complaint was the same land as that referred to in the contract should have been admitted.

One absolutely essential term in a contract for the sale of land, which must be shown before it can be specifically enforced, is a description of the land, either complete in itself, or which supplies data and information sufficient to enable the court with proper evidence to identify and locate the land definitely and with certainty. Upon that rule the courts are in substantial accord, but in applying it to specific cases there is no such concord.

In Fry on Specific Performance, par. 342, the rule is stated in this language: “Every valid contract must contain a description of the subject matter; but it is not necessary that it should be so described as to admit of no doubt what it is; for the identity of the actual thing and the thing described may be shown by ‘extrinsic evidence.’ This flows from the very necessity of the case; for all actual things except the contract itself, being outside of and beyond the contract, the connection between the words expressing the contract and things outside it must be established other than by the contract itself, that is, by extrinsic evidence.” Plant v. Bourne, 2 Ch. D. (1897), 285; Ogilvie v. Foljambe, 3 Mer. 53; Shardlow v. Cotterell, 20 Ch. D. 90.

Another statement of the rule applicable in such a case is found in Ryan v. United States, 136 U. S. 68, where the court quotes the following language from Eggleston v. Wagner, 46 Mich. 618: “A further objection is that the proposal did not sufficiently describe the real estate to satisfy the Statute of Frauds. The general principle is not questioned. The degree of certainty with which the premises must be denoted is defined in many books, and the cases are extremely numerous in which the subject has been illustrated. They are not all harmonious. But they agree in this, that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject-matter. The terms may be abstract and of a general nature, but they must be sufficient to fit and comprehend the property which is the subject of the transaction; so that with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended, and to the exclusion of all other property. The circumstances that in any case a conflict arises in the outside evidence cannot be allowed the force of proof that the written description is in itself insufficient to satisfy the statute.” And in Halsell v. Renfrow, 14 Okla. 674, it is said: “It is a general rule that parol evidence cannot be permitted to supply an omission of any essential element of the contract. In Ferguson v. Blackwell, 8 Okla. 489, this court held 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 because the court will never receive parol evidence both to describe the land, and then to apply the description.” To the same effect is Koch v. Streuter, 218 Ill. 546. And Pomeroy offers the following test for determining what evidence is “proper.” “Parol evidence is always admissible to explain the surrounding circumstances, and situation and relations of the parties, at and immediately before the execution of the contract, in order to connect the description with the thing intended, and thereby to identify the subject-matter, and to explain all technical terms and phrases used in a local or special sense. The description must be sufficient to render the identity clear upon the introduction of such evidence.” Pomeroy on Specific Performance, p. 390.

While so broad a statement of the rule may not be universally approved, nevertheless it seems to be in harmony with the trend of the later decisions.

Turning to the decisions of this Court, we find that in Kuntt & Parks v. Gist, 2 H. & J. 498, Parks bound himself to convey to Joshua Cockey all his title and interest in and to “one hundred and twenty acres of land called Parks’ Death Knot, situate, lying and being in the County of Baltimore,” which was part of other land owned by Parks. On a bill to specifically enforce that contract, Chancellor Kilty found by extrinsic evidence that that description applied to a definite tract of land, and decreed specific performance. On appeal, however, that decree was reversed because “there being no designation of the one hundred and twenty acres of land to be conveyed to Cockey, nor any description whereby the same could be identified and located, parol evidence is not admissible to show that it was intended by the parties that the one hundred and twenty acres were to be laid off at the southernmost part of the tract of land called Parks’ Death Knot.” But in King v. Kaiser, 126 Md. 217, the rigidity of the rule thus stated was to some extent modified. The description of the land affected by the contract under consideration in that case was in this form: “Beginning for the same at a stone placed at a pine tree at a head of a small cove emptying into Dark ITead and running northeasterly alongside said cove ninety feet to a pine tree marked ‘S. E.’; thence southeasterly along said cove one hundred and thirty-six feet to a stone alongside of a tree on the bank of Dark Plead; thence running southwesterly along Dark Head two hundred and eighty feet to a stake in the bank on said Dark Head; thence running westerly two hundred feet to a stone; thence northeasterly by a straight line to the place of beginning.” In dealing with a contention that that description was too indefinite, the Court there said: “While it may well be that the description could have been more precise, it can not be assumed, as the appellant does, that a surveyor could not go upon the ground and identify and mark it out definitely. Certain distinct- landmarks are called for, and if any one of them should not be found it would be a comparatively easy matter to reverse the call from another, and so fully locate the premises.” And in Engler v. Garrell, 100 Md. 397, it was said: “While, therefore, it is true the contract does not specify the city or state in which the house is located, it does give the name of the person who occupied it at the time, and he being found and identified, his local habitation can be easily ascertained.” And in the most recent case decided by this Court which touched the question, Bellevue Club v. Punte, 148 Md. 602, the propriety of parol evidence to connect the land described in the contract with the land claimed by the appellee was recognized, but specific performance was refused because “no landmarks are called for, and the surveyor who did endeavor to run the lines was compelled to locate two of them by means of vague alleged possession lines pointed out to him by two persons who had only known the property a comparatively short time.”

The relaxation of the rule against parol evidence has been carried even further in England and by some American courts. In Wylson v. Dunn, 34 Ch. Div. 569, the facts of the case, as stated in the syllabus, were these: A proposal lias been made that the two plaintiffs should buy a triangular field of about three acres, and that the defendant should buy half an acre of it from them. One of the plaintiffs and the defendant met on the field; the defendant wished to have a piece in one of the angles, and the plaintiff stepped so as to mark out where a base line would cut off half an acre. Some days afterwards the same plaintiff wrote to the defendant asking her to let them have a letter agreeing to purchase the half acre she had selected for £350. She wrote back, not expressly referring to the other letter, that she was willing to take half an acre of the land agreed upon for £350. The plaintiffs did not obtain a contract with the owner of the land for the purchase until the 4th of November, which was three months afterwards. On the 13th of November the defendant threatened to withdraw, and on the 20th of November her solicitors wrote that she did withdraw from the contract.” On these facts it was held, that the description was sufficient, and evidence admitted to connect the land described in the contract with the land “stepped off.” See also Ogilvie v. Foljambe, supra; Shardlow v. Cotterell 20 Ch. D. 90; Plant v. Bourne, 2 Ch. D. (1897), 285; Phillips v. Swank, 120 Pa. St. 76. And Pomeroy, in support of his text, cites among other cases Hollis v. Gurgess, 37 Kan. 487, where the court said: “Though mentioning no state, county or town in which, or plat on which, the land bargained is found, the agreement nevertheless gives a description which purports to and fitly may designate a particular piece of land, as the complaint in effect alleges that it in fact does. It cannot, therefore, be said to be void for failure to designate any tract of land as the subject of sale. The application of that description to the face of the earth— the identification of the particular piece mentioned is, as in other cases, a matter of evidence. But the description is a sufficient designation of the subject of the alleged contract, if it furnish the means of making the application and identification.”

Erom this examination of the authorities, considering, too, that the contract involved in this case must not only meet the requirements exacted by a court of chancery as precedent to a decree for its specific performance, such as certainty, mutuality and fairness, but must also meet the requirement of the Statute of Frauds, 29 Car. 21, ch. 3, par. 4, we have concluded that if the writing itself supplies information from which it may be naturally and legitimately inferred that the parties intended it to affect a certain definite tract of ground, that parol evidence should have been admitted to connect the description contained in the contract with the land to which it refers, but that if it did not supply such information, parol evidence was not admissible. The question then is, whether the contract under consideration did supply that information.

It is in the form of a receipt, and it sets forth precisely the names of the parties, the price to be paid, ihe exact dimensions of the tract, the property of which it is a part, its location with reference to Back Eiver and Eastern Avenue and a fence surrounding the Wright property, it recites the payment of $600 on account of the purchase price, and fixes the time for the payment of the balance. It may naturally be assumed from that that the vendor intended to sell and the vendee expected to buy a certain definite tract of land owned by the vendor facing Back Eiver and parallel with Eastern Avenue in Baltimore County, for it is not likely that the vendor would have sold a part of her land without knowing what part she sold, or that the vendee would have paid $600 on account of the purchase price without knowing what he was purchasing. And it may be fairly inferred from the contract itself, taken in connection with the evidence as to the circumstances under which it was made, that the parties did deal with reference to definite and specific property, the location of which was known to both of them. Parol evidence was therefore admissible to connect the description in the contract with the land which was intended to be described. To do that, the testimony of the surveyor, offered to establish that connection, which was excluded by the trial court, was relevant and proper, and there was error in excluding it. There was error, too, in dismissing the bill of complaint, because, in view of the appellant’s offer, the court was not at liberty to assume that he would not be able by proper evidence to identify tbe land referred to by the witness Pohmer with the land described in the contract. It will, therefore, be necessary to reverse the decree appealed from and remand the case, in order that the appellant may have an opportunity of adducing such evidence.

We do not, of course, express any opinion as to the ultimate disposition of the case, because, upon the conclusion of the appellant’s case, the appellee will have the right to offer any proper evidence tending to support his denial of the allegations of the bill of complaint.

Decree reversed, and cause remanded for further proceedings in accordance with the views expressed in this opinion, the costs of this appeal to be paid by the appellee.