Wilkinson v. Davis's Administrator

1 Free. Ch. 53

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

There are several features of this case upon which the injunction must be perpetuated and the contract rescinded.

The bill sets up that W. Davis fraudulently represented himself as the assignee of certain Choctaw Indians, who were entitled to five sections of land under the 14th article of the treaty of Dancing Rabbit creek. That he so represented himself is shown by the terms of his own bond, and by the testimony of Halsey, who says Davis, in fact, had no assignment from any Indians to his knowledge, except for a half section of land; that he had some contingent right, by virtue of a sub-contract with Halsey and one Johnson, but that the contract with Johnson was never complied with by Davis, and was finally rescinded by his administrator. Johnson also proves that he never knew of any assignment of an Indian title to W. Davis. Robert O. Patrick swears “that he knows that Davis had no shadow of right or title to any Choctaw lands, as assignee, from the Indians, either in law or equity; that Davis admitted to him he had no claim until certain conditions were performed by him, which were never performed. There is no proof that Davis was the assignee of a solitary Indian title, except some negative parol proof, which is inadmissible. The defendants should have adduced their written evidence, if any, of the assignment of title to five sections of land from the Choctaw Indians. It was incumbent on the defendants to show some title or right or contract with the Indians as the basis of their intestate’s bond, especially as the defendants have proved negatively, as far as it could be proved, that Davis had no title.

But I think the complainant’s bill may be .sustained upon a ground not mentioned on the trial. . The contract of sale to Wilkinson recites that the five sections sold were a part of thirty sections already located, but at what point, what are the numbers of the sections,- townships and range, is entirely omitted; nor is this defect cured by the bond for title: That gives no other designation of the land than the, vague, indefinite and uncertain description of five sections of land claimed by Davis as assignee of certain Indians, claiming under the 14th article of the Dancing Rabbit creek treaty.

Are not the bond and contract void for uncertainty? Every contract or deed for the conveyance of land must define its identity and fix its locality, or there must be such description of the land as, by the aid of parol evidence, will readily point to its locality and boundaries. But if the contract is void, by reason of the uncertainty in the description of the subject matter, parol evidence is not admissible to supply the omission.’ Sug. on Vendors, 114-15; 4 Mass. R. 205; 16 Mass. R. 86; 1 Pick. 31.

. It is clear that a bill for the specific performance of this contract could not be sustained. What sections out of the thirty, supposing them to be described, would the court decree to be conveyed? Wilkinson could maintain no action at law upon it for damages. The rule in such cases is, the value of the land to be conveyed at the time when the conveyance should be made. But what land would the proof be directed to, to prove its value? The contract gives no clue.

The injunction must be perpetuated, and the contract rescinded.