James v. Medford

512 S.W.2d 545, 256 Ark. 1002, 1974 Ark. LEXIS 1586
CourtSupreme Court of Arkansas
DecidedJuly 22, 1974
Docket74-83
StatusPublished
Cited by8 cases

This text of 512 S.W.2d 545 (James v. Medford) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James v. Medford, 512 S.W.2d 545, 256 Ark. 1002, 1974 Ark. LEXIS 1586 (Ark. 1974).

Opinion

CARLETON HARRIS, Chief Justice.

Appellants, Charles H. James and Carolyn B. James, his wife, and John L. Ham-maker and Billie Hammaker, his wife, instituted suit against appellees, M. C. Medford and Bertha Medford, his wife, James A. Medford and Donna Jean Medford, his wife, and Harper Realty Company, seeking specific performance of a contract for the sale of real property, or in the alternative, damages. The contract provided for the purchase of 120 acres of land, more or less, for the sum of $28,750.00. The court refused to grant specific performance. The chief difficulties between the parties arose because of a requirement that the seller would furnish an up-to-date survey, and because the description in the abstract was changed by the abstracter at the request of appellants. The evidence reflects that the survey provision was in the Offer and Acceptance at the time it was executed by all parties, but appellee, M. G. Medford, stated that he did not observe this condition and that he would not furnish a survey. Appellants, after acquiring information that there was a question as to the actual boundaries and thus the amount of acreage owned by M. C. Medford (and his son), insisted even more on the survey but Medford would not comply; however, the testimony reflected that appellants decided to proceed with the purchase, intending to subsequently survey the lands themselves;1 according to James, if the survey reflected less than the 120 acres, appellants intended to sue for shortages in acreage. When appellants arrived at the office of Medford's attorney to close the transaction, Medford did not show up, and the suit for specific performance followed. The proof reflected that Med-ford’s son, who was not a party to the contract, owned one-half interest in the property; however, this son and his wife had executed a deed conveying their interest to appellants and this deed had been turned over to the father or his attorney, though the son testified that he had not and would not agree to paying for any survey. It is not necessary to discuss this phase of the litigation, nor other issues or testimony relating thereto, since the contract relied upon is unenforceable, because of the property description appearing therein. The description reads as follows:

“120 acres more or less White County El Paso, Arkansas”

We have held such a contract to be unenforceable. In Routen v. Walthour-Flake Co., 221 Ark. 354, 253 S.W. 2d 208, the land to be sold was described in the contract as “16 acres — 67 Highway East at Fairfax Crossing.” There, no serious contention was made that the description contained in the sales contract was sufficiently definite to sustain an action for specific performance, but it was strongly contended that oral testimony should be permitted for the purpose of locating and identifying the land. We disagreed, stating:

“Weare of the opinion that appellant's contention in this matter cannot be sustained. The principal reason for this conclusion is that, since the description of the land in the sales contract is admittedly not definite, there are no words or phrases in the contract itself or in any of the correspondence which furnish a key whereby the land could be definitely located and described. This is the test that has been consistently announced in many decisions of this court, a few of which are noted below.
“In the case of Fordyce Lumber Company v. Wallace, 85 Ark. 1, 107 S.W. 160, Justice McCullough, speaking for the court, said:
‘Before a court of equity is justified in requiring specific performance of a contract to convey land, the property which is the subject must be accurately described; the contract must disclose a description which in itself is definite and certain, or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified.’
Although this case has been cited many times it has never been overruled. It was distinguished in the case of Hirschman v. Forehand, 114 Ark. 436, 170 S.W. 98, where the court, in spite of an indefinite description, permitted the introduction of proof to make it more specific, but on the theory that the case was taken out of the statute of frauds because the purchaser had entered into possession and made valuable improvements. Those features, of course, are not present in the case under consideration. “Testimony was permitted to identify lands indefinitely described in a sales agreement in the case of Dollar v. Knight, 145 Ark. 522, 224 S.W. 983, but it was allowed under the rule in the Fordyce Lumber Company case, supra.
“In the case of Rawls v. Free, 184 Ark. 737. 43 S.W. 2d 540, the court again permitted testimony for the purpose of identifying the land.The contract between the buyer and the seller consisted of letters in which the property was described as ‘the property of the Ross Estate, upon which Free held a mortgage which he was then foreclosing.’ In applying the rule heretofore announced, the court used this language:
‘An accurate description of the lands might have been obtained from the mortgage or from the decree ordering its foreclosure, and the contract furnished the key by which the property might be certainly identified.’ ”

In Miller v. Dargan, 136 Ark. 237, 206 S.W. 319, cited by appellants, the lands were described in the contract as “their plantation located on Carson Lake in the Osceola District of Mississippi County, Arkansas, containing 520 acres, more or less”, and we held this to be a good description, but it will be at once noted that the description shows a definite plantation owned by the defendants and w'here it was located, and we said that the contract was not within the operation of the statute of frauds.

Though appellants did not plead that they were placed in possession, relying only upon the description heretofore mentioned, there are two fallacies to any argument that they were placed in possession of the premises, thus taking the contract out of the statute of frauds, and permitting oral evidence as to the actual location of the property. For one thing, the “possession” exercised by appellants was of a very limited nature. Medford gave appellants permission to go upon the premises to “clean it up”; however, Mr. James testified that this work only occurred on two weekends, at which time, “We trimmed the trees, the limbs were hanging down. We picked up fence posts. We rolled up barb wire and we mowed around the house.”2 Oí'course, when one is placed in possession, as that term is used when applied to taking a contract outside the restrictions of the statute of frauds, it means such possession as would permit the exclusion of others.3 Two weekends of cleaning up debris can hardly be construed as turning the possession of the land over to appellants, particularly when we consider that appellants were in the process at the time of trying to obtain the money to make the purchase and had not, at that time, advised appellee that they were ready to close the transaction.4 Of course, if such a loan had not been obtained, appellants could not have purchased the property and no one would contend that their entry upon the lands was of any significance.

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Bluebook (online)
512 S.W.2d 545, 256 Ark. 1002, 1974 Ark. LEXIS 1586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-v-medford-ark-1974.