Minge v. Green

58 So. 381, 176 Ala. 343, 1912 Ala. LEXIS 86

Opinions

SOMERVILLE, J.

The hill was filed to compel specific performance of a contract for the sale or exchange of real estate.

The terms of the contract as to which relief is sought, as exhibited by the bill of complaint, are found in a written memorandum constituting respondent’s offer to complainant, and in a letter from complainant to respondent accepting the memorandum offer.

The memorandum and letter are as follows:

“Birmingham, Ala., May 28, 1911. Received of P.' R. Green one and no/100 dollars as earnest money and part purchase price of property described, to wit: House and lot No. 3019 Ave. G. subject to one mortgage of $1800.00. 4 houses and two lots 50x190 each W. % lot 21 and E% lot 22 ‘Belleview/ subject to one mortgage $2600.00, house and lot on 21st Ave. North, between 25th and 26th streets, and known as U. J. Brown’s home, subject to one mortgage of $1600. Also lots 27 and 28, block 15 Rosemont, subject to title contract of $200. Mortgage of $2000 on farm to be convéyed by Green, same to be due in 3 years on or before with interest from date at 8 per cent, this day sold to said Dr. P. B. Green (or assigns) for the price and sum of $10,000; on the following terms:. $1.00 cash, balance and deed to 400-acre farm about two miles from Batelle (a station) on the A. G. S. R. R. The buyer, Dr. P. B. Green, agrees to pay Ben F. Eborn & Harrington one thousand ($1,000.00) dollars as commission for sale of his farm in this deal, with-per cent, interest, deferred payments to be secured by_______ Will pay taxes for the current year and furnish abstract of title to date. Title to be good and merchantable or contract void and earnest money to be refunded. Sale to be complied with thirty (30) days from date. This contract subject to approval of owner. Dr. P. B. Green.”

“Dr. P. B. Green, City — Dear Sir: I have just returned from a trip to DeKalb county where I went to examine your place, about two miles out from Batelle. This letter is to notify you that I do hereby approve the contract made with you on May 27th, 1911, and I am ready to close the deal with you in accordance with our contract of the above date. I will prepare the deed for the property you purchased from me, and will be able to deliver it to you along with abstract of title in a few days. In the meantime please furnish me with abstract of'title on your 400 acres of land. Trusting that you will give this your prompt attention, I am, very truly yours, Jno. H. Minge.”

The prayer is that respondent be required to convey to complainant the 400-acre farm as specified, free from all incumbrances; or, if a release of the dower right' cannot be procured, that conveyance be made subject to that right, with an equitable abatement of the purchase price to the extent of the value of such incumbrance.

Respondent demurred to the bill on substantially the following grounds: (1) There is no equity in the bill; (2) it is multifarious; (3) a necessary party is omitted; (4) the terms of the contract are too vague and uncertain to permit of enforcement; (5) it improperly seeks to explain and enlarge a complete writing by parol evidence; and (6) it shows that the contract is to be void unless the title to be conveyed by respondent is good and merchantable, and yet shows an inchoate dower interest is outstanding.

The chancellor sustained the demurrer as a whole, and the appeal is from that decree.

It is evident that the bill is not multifarious. The prayer is simply for specific performance, and the proposed abatement of the purchase price as compensation for the incumbrance of the land by an outstanding inchoate dower right, in case of its nonremoval, is a matter merely of detail in the adjustment of the relief if granted. It is evident, also, that,' as respondent is the only party to the agreement to convey, he is the only proper party to a proceeding for its enforcement.

The chief contentions insisted upon are (1) that the terms of the contract exhibited are too uncertain to per mit of specific enforcement, and cannot be aided by parol evidence; and (2) that, in any case, there being-shown an outstanding incumbrance, the agreement by its own terms is rendered void and unenforceable.

The property undertaken to be conveyed by respondent, with a “good and merchantable” title, is described as a “400-acre farm about two miles from Batelle (a station) on the A. G-. S'. R. R., ” and is also referred to as “his [i. e., P. B. Green’s] farm.” In complainant’s letter of acceptance he says: “I have just returned from a trip to DeKalb' county, where I went to examine your place, about two miles out from Batelle.” The bill of complaint avers that at the time this memorandum of the contract was signed by respondent he “owned one 400-acre farm about two miles from Batelle, a station on the Alabama Great Southern Railroad, which was the only 400-acre farm owned by said defendant anywhere; and the only farm of any size owned by the defendant in the vicinity of said station. Said farm is situated in DeKalb1 county, Ala.” That the memorandum description of this farm may be of uncertain application is, of course, apparent. The ambiguity is, hoAvever, a latent one, and the description may be made certain in its application to the subject-matter intended by the aid of evidence dehors the writing. “Id. cerium est quod reddi potest,” is a maxim which has been frequently and liberally applied by this court for the upholding of imperfect descriptions of this character. The intent here Avas to sell a certain 400-acre farm. It is identified by reference thereto as belonging to the vendor, and as being located about tAvo miles from a designated railroad station. If there is such a farm owned by the vendor, and if he OAvns but one such farm, and the bill avers these facts, the application of the given description to the subject-matter intended is freed from all uncertainty, and involves no difficulty whatever. Indeed, the sufficiency of a description of such a character as this has been so often affirmed by this court as to be no longer open to discussion. — Ellis v. Burden, 1 Ala. 458; Baucum v. George, 65 Ala. 259; Meyer v. Mitchell, 75 Ala. 475; Angel v. Simpson, 856 Ala. 53, 3 South. 758; Homan v. Stewart, 103 Ala. 644, 16 South. 35; Cottingham v. Hill, 119 Ala. 356, 24 South. 552, 72 Am. St. Rep. 923; Greene v. Dickson, 119 Ala. 346, 24 South. 422, 72 Am. St. Rep. 920; Eufaula Nat. Bank v. Pruett, 128 Ala. 470, 470, 30 South. 731; Caston v. McCord, 130 Ala. 318, 30 South 431; Seymour v. Williams, 139 Ala. 414, 36 South. 187; Howison v. Bartlett, 141 Ala. 593, 37 South. 590.

Speaking of the liberality of this rule, Justice Head said in Webb v. Elyton Land Co., 105 Ala. 479, 18 South. 179 : “The rule we have adopted commends itself for its conservatism and justice. Howsoever vulnerable it may be to the attack of technical and refined principles of law upon the subject of ambiguous writings, we are not so well satisfied that it is unwise as to be disposed to depart from it. And Justice Sharpe said in Caston v. McCord, 130 Ala. 321, 30 South. 431: “In this state it has been settled by decisions so numerous as to establish a rule of'property that mere indefiniteness in description, though it he such as to render a deed prima facie inoperative, does not necessarily have that effect; that evidence of extrinsic facts relative to the situation of the parties and the circumstances attending the conveyance may he looked to for the purpose of identifying its subject-matter; and that it is only upon the failure of evidence to give certainty to the description that the instrument will be declared void.” It is the‘office of the description, not to identify the land, but to furnish the means of identification. This we think is accomplished by the memorandum in question, and the averments of the bill are designed only to aid in that result, not, as appellee’s counsel argues, to show the intention of the parties as expressed dehors the Avriting. So far as the other features of the memorandum are concerned, Ave find nothing which is not readily intelligible and capable of practical enforcement.

Courts are loath to strike dOAvn deliberate contract because of supposed uncertainty in any of its terms; and, if any of these terms are ambiguous and prima facie capable of more than one meaning, the court Avill look to the situation of the parties and the objects they had in view to determine their true meaning. Especially Avill the court in such cases construe doubtful terms against the party Avko framed them, and Avho is offering or undertaking to do the things in question. These are elementary principles, and their application to this memorandum ansAvers every objection made to it. Thus viewed, it is too clear for serious dispute that Green offered to sell his farm to Minge in exchange for four pieces of city property, Avhich were subject to stated mortgage incumbrances, in addition to which Minge was to give Green a mortgage on the farm for $2,000, due and payable in three years,, or any date before then at Minge’s option, and bearing 8 per cent, interest from the date of the mortgage, Avhich. should, of course, be executed when the contract Avas closed.

The recital that the Rosemont lots Avere bought “subject to title contract of $200,” whatever it may means, suggests no ambiguity in the contract, for it is not a provision to be enforced or given effect in any Avay. It is merely descriptive of the condition of the title Avitli respect to some incumbrance, and serves to relieve Minge of liability for that condition, Avkatever it may be. The recital, “will pay taxes for current year and furnish abstract of title,” certainly expresses an obligation on the part of the signer of the memorandum, if of no one else. And the 'recital, “this contract. subject to approval of owner,” can only mean the approval of Minge, since Green had already approved, or was then approving, it.

The provision that title is to be good and merchantable, “or contract void and earnest money to be refunded,” must be construed as meaning that each party may at his option avoid his obligation to convey his property to the other party, and may decline to receive the other party’s conveyance, unless such other party can convey a good and merchantable title to him. But either party may nevertheless stand upon the contract,, and require its execution to the extent of the other’s, ability. — Weatherford v. James, 2 Ala. 170.

It only remains to consider the equity of the bill with respect to its alternate prayer for a conveyance of the farm to complainant subject to Mrs. Green’s inchoate dower right, with an equitable abatement of the purchase price as compensation for that incumbrance. “Although the purchaser cannot have a partial interest forced upon him, yet, if he entered into the contract in ignorance of the vendor’s incapacity to give him the whole, he is generally entitled to have the contract specically performed as far as the vendor is able, and to have an abatement out of the purchase money for any deficiency in title, quantity, or quality of his estate. This is not making a new contract for the parties since the vendor is not compelled to convey anything which he did not agree to convey, and the vendee pays for what he gets according to the rate established by the agreement.” — 33 Cyc. 740, 2a. “The usual rule as to specific performance with abatement from the price is applied in many of the states to the case of a purchase from a married man, whose estate is subject to his wife’s inchoate dower ■ right. The purchaser may have specific performance,' with a deduction from the price of such sum as represents the present value of the wife’s contingent interest, estimated by the usual rules and tables. By the practice in a number of states, instead of making an abatement of a lump sum from the purchase price, estimated as the present value of the Avife’s inchoate do Aver interest, the court gives an indemnity to the vendee against such interest. This is generally done by permitting him to retain one-third of the purchase price until the Avife dies or releases her •dower, and securing its ultimate payment to the vendor or his heirs by mortgage or lien on the land conveyed.” — 36 Cyc. 744 (11) (111), and numerous cases cited. Whatever may be the rule in some of the other :states, this court has long been committed to the rule as above quoted.' — Springle v. Shields, 17 Ala. 295; Thrasher v. Pinckard, 23 Ala. 616; Kelly v. Allen, 34 Ala. 663, 670. This rule Ave think is in accord AAdth reason, and is supported by the great Aveight of authority, and Ave have no disposition to depart from it at this late day. The decision in Spring v. Shields, supra, cannot be distinguished from the present case on the theory that there the vendor had recovered a judgment for the purchase money against the vendee. We do not conceive that that fact Avould make any difference, and in Thrasher v. Pinckard, supra, no judgment had been recovered by the vendor.

In some instances courts have denied the right of the vendee to have an abatement of the purchase money as compensation for an outstanding inchoate dower interest on account of the uncertainty of its value, and the difficulty of a reliable estimate. — Cowan v. Kane, 211 Ill. , 71 N. E. 1097. In cases of necessity such a computation may be made by methods that are well settled.— Gordon v. Tweedy, 71 Ala. 202, 211; Strayer v. Long, 86 Va. 557, 10 S. E. 574; 2 Minor’s Inst. 156.

In this state it is settled, however, that where the incumbrance is a dower estate, even though already vested, a gross compensation will not be allowed the vendee who seeks specific performance, but only an indemnity against loss therefrom.- — Springle v. Shields, 17 Ala. 295. This indemnity is in contemplation of an actually vested dower estate, and the amount of the reservation of purchase money will be measured by the relative quantum of that estate, as ruled in Springle v. Shields, supra. The object in view is merely to indemnify the vendee against the contingent future assertion of the dower right, and this will be accomplished by regarding the following rules: (1) The amount'of the reservation should be one-half or one-third of the purchase price, as the wife may presentty appear to be entitled under section 3813 of the Code, prescribing the quantum of the doAver estate. (2) If the dowress expectant die before her husband, the amount reserved, Avith legal interest to that date, should be forthwith paid to the vendor. (3) If she survive her husband, the amount reserved falls due upon her death, and is then payable to the vendor’s heirs at laAv or assigns, Avith legal interest accruing during the vendor’s lifetime only. (4) The ultimate payment of the amount reserved should be secured by a decretal order making it a lien on the land, or else by a mortgage on the land conditioned and payable as above prescribed, as the chancellor may in his discretion determine. The foregoing are general rules. It is evident that there can be no reservation of purchase money in any case except to the extent that the consideration is payable in money. The bill shoAVS that in this case only $2,000 is thus payable, and hence the reservation to be allo wed, cannot exceed this amount. It will be noted that in Springle v. Shields, supra, it was held that the fund reserved was payable on the death of the dowress without interest. But'there the dower estate had already vested, and the deprivation of the beneficial use of the land was complete, which is not the case here.

During the vendor’s life, the purchaser’s possession and use cannot be disturbed, and it would be extremely inequitable to permit the vendee to enjoy the use of both the land and the purchase money at the same time. While he has the land he ought to pay interest on the money. Of course, the court cannot require the wife to execute a release of her dower right, and such is not the purpose of the bill.

Nevertheless, it is proper for the bill to offer to defendant an opportunity to procure a release, if he can do so; and proper also for the court to so shape its decree as to afford such opportunity.

The grounds of demurrer assigned to the bill Avere not well taken, and the decree sustaining the demurrer Avas erroneous. That decree will be reversed, and a decree will be here entered overruling the demurrer.

Reversed and rendered.

Doavdell,\ C. J., and Simpson, McClellan, and Sayre, JJ., concur. Anderson and Mayfield, JJ., dissenting.