Williams v. Ellison

493 S.W.2d 734, 16 Tex. Sup. Ct. J. 274, 1973 Tex. LEXIS 269
CourtTexas Supreme Court
DecidedApril 11, 1973
DocketB-3687
StatusPublished
Cited by26 cases

This text of 493 S.W.2d 734 (Williams v. Ellison) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Williams v. Ellison, 493 S.W.2d 734, 16 Tex. Sup. Ct. J. 274, 1973 Tex. LEXIS 269 (Tex. 1973).

Opinions

SAM D. JOHNSON, Justice.

Suit was brought by the respondent, Ray Ellison, for specific performance of an option contract to purchase ten acres of land in Bexar County, Texas, against the petitioner, J. D. Williams. Trial was to the court which ordered specific performance. The court of civil appeals affirmed. 486 S.W.2d 186. We reverse the judgments of the courts below.

The petitioner Williams was the owner of a triangular-shaped 97.81 acres of land located between Frio City Road, Medina Base Road and Holm Road in Bexar County, Texas. On July 22, 1965, he entered into a contract to sell a specifically described ten acres (herein referred to as “first tract”) to respondent’s assignor, one Kaulbach, for $30,000. This first tract was in the 'form of a square with each side being 660 feet in length. It was located adjacent to and at the intersection of Medina Base Road and Holm Road. While the contract specifically described this first tract, it made no reference to the larger triangular-shaped 97.81-acre tract of which it was a part.

By the terms of this same instrument, an option was given to Kaulbach, or his as-signee, to purchase an additional ten acres (herein referred to as “option tract”) for the sum of $25,000. The option tract was unspecified, however, and the contract’s complete reference to and description of it is as follows:

“Seller hereby grants to Purchaser an option to purchase an additional 10 acres of land at a price of $25,000.00 payable in cash. In order to exercise this option Purchaser must give written notice to Seller on or before twelve (12) months after closing of this sale and at least a portion of the boundary line of the 10 acre tract so purchased shall be contiguous to a portion of the boundary line of the 10 acres described above in this contract ; provided, however, that no portion of such option tract shall include the water well presently located on Seller’s land nor any portion of an area one acre square centered on such water well. The sale shall be closed within 90 days after the giving of such written notice, and Seller shall furnish a general warranty deed and title guaranty policy free and clear of all encumbrances. Current taxes are to be prorated to date of closing.
“This agreement shall extend to and bind the heirs, executors, administrators, [736]*736successors and assigns of both parties hereto.”

In October 1965, Williams conveyed the first tract to Kaulbach and received the sum of $30,000. Kaulbach assigned the option to Ellison, who then attempted to exercise the quoted option on the unspecified option tract. The purchaser-respondent did so by selecting a ten-acre tract, having it surveyed and described by metes and bounds. The option tract selected was made to be adjacent to the 660-foot south boundary of the first tract for a distance of 90 feet. The option tract was made then to proceed south along Holm Road for a distance of 1,503 feet, then east, then north, then west and north around the water well and back to the place of beginning. Pursuant to the option contained in the contract, the option tract selected did not include any portion of the one-acre square centered on the water well. The selection made by the purchaser was timely communicated to the owner-petitioner. For the purposes of this opinion it is assumed that the quoted provisions of the option were fully complied with by the purchaser-respondent. It was on these circumstances and upon the refusal of the owner-petitioner to execute a deed that this suit ensued.

The essential issue to be determined is whether the description of the option tract in the contract is “so vague, indefinite, uncertain and wanting as to be wholly insufficient” under the provisions of Tex.Bus. & Commerce Code § 26.01, V.T.C.A. (Statute of Frauds). We hold that it is insufficient.

This Court has consistently stated that the test for determining the sufficiency of the description of land in contracts to convey land, for compliance with the statute of frauds, is that “[t]o be sufficient, the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the land to be conveyed may be identified with reasonable certainty.” Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972), and see cases therein cited. This has been referred to as the “nucleus of description” theory. Republic National Bank of Dallas v. Stetson, 390 S.W.2d 257 (Tex.1965); Continental Supply Co. v. Missouri, K. & T. Ry. Co., 268 S.W. 444, 446 (Tex.Comm.App.1925, jdgmt adopted).

In the relevant section of the contract, there are only two parts which may be construed as descriptive of the option tract. The first provides that at least a portion of its boundary line shall be contiguous to a portion of the boundary line of the first tract. The second provides that the option tract shall not include any portion of a one-acre tract centered on the water well. The total language of the contract, therefore, does no more than provide a site of origin for the option tract, that is, for whatever distance it is made to be contiguous to the first tract.

No hint is supplied as to the distance for which these two tracts were intended to be adjacent or as to which one or more of the first tract’s four boundaries the option tract was intended to be abutting. With the description supplied, a surveyor could go upon the premises and only know that the point of origin of the option tract would be somewhere along one or more of the four boundaries of the first tract. He would be given no clue as to the common boundary’s length and might presume it to extend an inch or for any distance along any one or more of the first tract’s boundaries. Beyond this, he could not ascertain the length, breadth, direction or shape of the remaining calls. The contract places no limits on the option tract to be selected to lands owned by the seller, to any larger tract, to any survey, or to any political or geographic subdivision. The writing cannot be said to furnish within itself the means or data by which the option tract may be identified.

Beyond the foregoing, the contract makes no reference to any other existing writing, record or document which might supply the means or data by which the op[737]*737tion tract could be identified. There is therefore no reference to anything outside the contract, by resort to which certainty could be attained.

Respondent strongly contends, however, that this is a “selection type” case where the property to be conveyed, though not presently subject to identification, is to be selected at a subsequent time. Respondent’s principal reliance is placed upon Taylor v. Lester, 12 S.W.2d 1097 (Tex.Civ.App.—Austin 1929, writ ref’d) ; Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688 (1938); and Stekoll Petroleum Co. v. Hamilton, 152 Tex. 182, 255 S.W.2d 187 (1953).

In Taylor v. Lester, supra, the plaintiff accepted the defendant’s offer to sell land which was described (page 1097) as follows :

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Bluebook (online)
493 S.W.2d 734, 16 Tex. Sup. Ct. J. 274, 1973 Tex. LEXIS 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-ellison-tex-1973.