Allen v. Kitchen

• Decision Date: 20 March 1909
• Citation: 16 Idaho 133,100 P. 1052
• Parties: HARDY L. ALLEN, Appellant, v. JOHN KITCHEN, Respondent
• Court: Idaho Supreme Court

100 P. 1052

16 Idaho 133

HARDY L. ALLEN, Appellant, v. JOHN KITCHEN, Respondent

Supreme Court of Idaho

March 20, 1909

EXECUTORY CONTRACT FOR THE SALE OF REAL ESTATE-STATUTE OF FRAUDS-SPECIFIC PERFORMANCE-IDENTIFICATION OF SUBJECT MATTER-PAROL EVIDENCE-SUPPLYING DESCRIPTION-SUFFICIENCY OF DESCRIPTION-REFORMATION OF CONTRACT-EQUITY JURISDICTION-POWER OF EQUITY TO REFORM A CONTRACT.

1. An executory contract for the sale of real estate, describing the property to be conveyed as "Lots 11, 12 and 13 in Block 13, Lemp's Addition," and which contract fails to designate the state, county, civil or political district in which the land is situated, and fails to disclose the municipal or other subdivision to which the tract of land is an "addition," is an insufficient and void description and cannot be supplied or aided by parol evidence.

2. In an action for the specific performance of an executory contract for the sale of real estate, parol evidence is admissible for the purpose of applying the description contained in the writing, in order to show that there are lands of the name and description contained in the writing but such evidence is not admissible for the purpose of supplying or adding to the description in order to make it comply with the requirements of the statute of frauds.

3. In actions for the specific performance of executory contracts for the sale of real estate, the distinction should always be clearly drawn between the admission of oral and extrinsic evidence for the purpose of identifying the land described in the writing, and applying the description therein contained and that of supplying and adding to a description insufficient and void on its face.

4. Courts of equity have the power and jurisdiction to so reform executory contracts for the sale of real estate as to require and compel them to speak the truth in a matter of description where it is clearly established that the instrument on its face speaks falsely; but a court of equity has no power or jurisdiction, under the pretense of reformation or otherwise to so construct or reconstruct such an agreement as to add to the description or make a complete contract out of one which on its face was incomplete or insufficient to meet the requirements of the statute of frauds.

5. Courts of equity can no more disregard statutory requirements and provisions than can courts of law, and whenever the rights or the situation of parties are clearly defined and established by the provisions of the statute, equity has no power or jurisdiction to change or unsettle those rights or that situation; but in all such cases the maxim, Equitas sequiter legem, is applicable.

6. Where the statute of frauds requires certain contracts to be in writing, and prohibits oral evidence to establish such contracts, they must be deemed, both in law and equity, never to have been completed and consummated until reduced to writing and subscribed by the party to be bound as required by the statute. In such case, the law views the transaction as incomplete and that the assumed contract has never been consummated.

7. Courts of equity have power and jurisdiction to so reform an executory contract that is valid and binding on its face as to relieve it of any statement, declaration or description that has been inserted therein through deception, fraud or mutual mistake, and to make its statements speak the truth as it was intended to insert it in the instrument. On the other hand, courts of equity have no power or jurisdiction to construct or reconstruct an executory contract for the parties, or to insert therein a new and essential element or matter that is required by the statute to be reduced to writing in order to make the contract valid and binding.

(Syllabus by the court.)

APPEAL from the District Court of the Third Judicial District, for the County of Ada. Hon. Fremont Wood, Judge.

Action by the plaintiff for the specific performance of an executory contract for the sale of real estate. Judgment for defendant and plaintiff appealed. Affirmed.

Judgment of the trial court affirmed. Costs awarded in favor of respondent.

J. C. Johnston, for Appellant.

"An agreement for the sale of lands, under the statute of frauds, will be held sufficient, as to its description of the land to be conveyed, if it so discloses a particular piece or tract of land that it can be identified, located or found. Parol evidence may be resorted to to apply the description or identify the tract, though such description be somewhat general." (Lente v. Clarke, 22 Fla. 515, 1 So. 149; Eggleston v. Wagner, 46 Mich. 610, 10 N.W. 37; Hollis v. Burgess, 37 Kan. 487, 15 P. 536; Barry v. Combe, 1 Pet. 640, 7 L.Ed. 295; Nichols v. Johnson, 10 Conn. 192; Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110; Bulkley v. Devine, 127 Ill. 406, 20 N.E. 16, 3 L. R. A. 330; Tewsbury v. Howard, 138 Ind. 103, 37 N.E. 355; Wilson v. Riddick, 100 Iowa 697, 69 N.W. 1039; Giles v. Swift, 170 Mass. 461, 49 N.E. 737; Tice v. Freeman, 30 Minn. 389, 15 N.W. 674; Black v. Crowther, 74 Mo.App. 480; Singleton v. Hill, 91 Wis. 51, 51 Am. St. 868, 64 N.W. 588; 29 Am. & Eng. Ency. of Law, 2d ed., 866, 867; Robeson v. Hornbaker, 3 N.J. Eq. 60.)

It is not absolutely necessary that the state or county should be a part of the description. It is sufficient if, upon the whole instrument, it can be fairly inferred in what state or county the land lies. (Tewsbury v. Howard, supra; Scanlan v. Geddes, 112 Mass. 15; Hurley v. Brown, 98 Mass. 545, 96 Am. Dec. 671; Quinn v. Champagne, 38 Minn. 322, 37 N.W. 451; Price v. McKay, 53 N.J. Eq. 588, 32 A. 130; Robeson v. Hornbaker, 3 N.J. Eq. 60; Dougherty v. Chestnutt, 86 Tenn. 1, 5 S.W. 444; 29 Am. & Eng. Ency. of Law, 2d ed., 868.)

It is not required that the written contract itself should furnish the sole evidence of certainty and definiteness, where it is complete in its material terms, and there is sufficient certainty and definiteness for the court to supply either by proper reference to other documents, or by properly admissible parol evidence as to extrinsic facts, the necessary degree of exactness. (6 Pomeroy's Eq. Jur., sec. 766; Peay v. Seigler, 48 S.C. 496, 59 Am. St. 731, 26 S.E. 885; Fowler v. Fowler, 204 Ill. 82, 68 N.E. 414; Ross v. Purse, 17 Colo. 24, 28 P. 473; Halsell v. Renfrow, 14 Okl. 674, 78 P. 118.) The statute of frauds does not interfere with the power of the courts of equity to reform deeds or other instruments in which the parties intended to comply with the statute and were prevented by fraud, accident or mistake. (Blackburn v. Randolph, 33 Ark. 119; Johnson v. Johnson, 8 Baxt. (Tenn.) 261; Durham v. Taylor, 29 Ga. 166.) A court of equity may reform a written contract, upon parol evidence of fraud, or mistake, although the contract be one which the statute of frauds requires to be in writing. ( Rider v. Powell, 4 Abb. Dec. 63; 23 Cent. Digest, col. 2319, sec. 267; Morrison v. Collier, 79 Ind. 417; Dutch v. Boyd, 81 Ind. 146; 6 Pomeroy's Eq. Jur., sec. 682.)

K. I. Perky, and John F. MacLane, for Respondent.

To comply with the statute of frauds, "the writing must state the contract with such certainty that its essentials will be known from the memorandum itself, or by reference contained in it to some other writing, without resource to parol evidence." (Thompson v. Burns, 15 Idaho 572, 99 P. 111; Kurdy v. Rogers, 10 Idaho 416, 79 P. 195.)

In the following cases, contracts were held insufficient under the statute of frauds, where they failed to identify the city or county in which the property was situated, and oral evidence to supply the deficiency was rejected: Hartshorn v. Smart, 67 Kan. 543, 73 P. 73; Repetti v. Maisak, 6 Mackey (D. C.), 366; Waters v. Ritchie, 3 App. D. C. 379; Holmes v. Johnson, 59 Tenn. 155; Clark v. Chamberlin, 112 Mass. 19; Craig v. Zelian, 137 Cal. 105, 69 P. 853.

We know of no case in which such a contract has been reformed, and to allow reformation would defeat the statute of frauds. ( Davis v. Ely, 104 N.C. 16, 17 Am. St. 667, 10 S.E. 138, 5 L. R. A. 810; Glass v. Hulbert, 102 Mass. 24, 3 Am. Rep. 418.)

AILSHIE, J. Sullivan, C. J., and Stewart, J., concur.

OPINION

AILSHIE, J.

This action was instituted in the district court for the reformation and specific performance of a contract for the sale of real estate. The trial court sustained a demurrer to plaintiff's amended complaint and entered judgment of dismissal and for costs against the plaintiff. The contract upon which the action was brought in as follows:

"This article of agreement, made and entered into this 21st day of May, 1908, by and between H. L. Allen, party of the first part, and John Kitchen, party of the second part, witnesseth: That the party of the first part has this day bargained to sell and convey to party of the second part, with good and sufficient abstract of title to the following described property, to wit: Lots 11, 12 and 13 in Block 13, Lemp's Addition, consideration seventeen hundred dollars ($ 1700.00).

"In consideration of the above, and in payment of the same, party of the second part has this day bargained to sell and convey to party of the first part by good and sufficient title with good abstract showing the same, the following described property, to wit: Lot 27, Syringa Park Addition, consisting of 5 acres, consideration one thousand dollars ($ 1000.00). All papers to be completed and exchanged and all sums and differences due and payable must be settled on or before the 28th day of May, except as otherwise agreed in above contract.

"First Party, H. L. ALLEN.

"Second Party, JOHN KITCHEN.

"F. M. EBY, Witness."

It is first contended that this contract is sufficient to admit oral evidence showing the location of the lots and property intended...