Ames v. Ames

• Decision Date: 29 March 1910
• Docket Number: 6,637
• Citation: 91 N.E. 509,46 Ind.App. 597
• Parties: AMES v. AMES
• Court: Indiana Appellate Court

91 N.E. 509

46 Ind.App. 597

AMES v. AMES

No. 6,637

Court of Appeals of Indiana

March 29, 1910

Rehearing denied December 15, 1910.

From Laporte Circuit Court; John C. Richter, Judge.

Suit by Lydia E. Ames against Charlotte B. Ames. From a decree for defendant, plaintiff appeals.

Reversed.

Hickey & Wolfe, for appellant.

Frank E. Osborn, W. A. McVey and Lee L. Osborn, for appellee.

OPINION

HADLEY, J.

Augustus Ames died testate on March 1, 1906, the owner in fee simple of a farm of 195 acres and the undivided one-half of three lots in Michigan City, all in Laporte county. He left as his sole heirs and devisees appellant, his widow, and appellee, his adopted daughter. By the terms of his will each of said persons was devised an undivided one-half interest in said real estate as joint tenants. Appellant instituted this suit for partition of said real estate, and to her complaint appellee filed answer in two paragraphs, the first being a general denial, and the second averring that appellant, on October 11, 1906, had executed to appellee a written contract, by which she sold said real estate to appellee, and agreed to convey it to her on the payment of the sum of $ 3,000, which contract was, in part as follows:

"October 11, 1906.

This contract between Lydia Ellen Ames and Charlotte B. Ames.

Lydia Ellen Ames sells to Charlotte B. Ames, all of her interest in the real estate formerly owned by Augustus Ames, deceased, for $ 3,000."

Then follow stipulations as to crops, etc., not material to this discussion, and the contract is signed, "Lydia E. Ames."

It is averred that the real estate described in said complaint was all the real estate in which appellant had any interest or estate derived from Augustus Ames; that appellee made a tender on October 27, which was refused; that appellee was therefore the equitable owner of said real estate.

Appellee also filed a cross-complaint, averring, substantially, the same facts as set out in the second paragraph of answer, with a prayer that the court order specific performance of said contract. Appellant filed a reply in three paragraphs to the second paragraph of answer, the first being a verified general denial, the second averring affirmative matter in the nature of fraud and misrepresentation, the exercise of undue influence over appellant, and the taking advantage of her distress in procuring said contract and that it was never delivered. The third paragraph avers that said contract was not a written contract, but was part oral and part written, and that there was no money or anything of value paid thereon; that possession had never been surrendered, that no performance of any kind or character had ever been made, and that the contract was without consideration. Appellant also filed an answer in three paragraphs to the cross-complaint, said paragraphs being identical with the paragraphs of reply to the answer. Demurrers were filed to each affirmative paragraph of answer and reply, and to the cross-complaint and the affirmative answers thereto, all of which were overruled and exceptions taken. The court made a special finding of facts and stated conclusions of law thereon, by which conclusions the law was stated to be with appellee, and a decree was entered thereon denying appellant's right to partition, and decreeing specific performance of said contract.

Appellant excepted to the conclusions of law, and also filed a motion for a new trial, which motion was overruled, to which ruling appellant excepted. Error is assigned on the ruling of the court on the demurrers and on the exceptions to the conclusions of law, and to the ruling on the motion for a new trial.

It is insisted, under various exceptions, that the contract set out is insufficient to support a decree for specific performance, for the reason that the description of the land sold is too indefinite and uncertain. It is well established that where the description given is consistent, but incomplete, and its completion does not require the contradiction or alteration of that given, nor that a new description should be introduced, parol evidence may be received to complete the description and identify the property. Tewksbury v. Howard (1894), 138 Ind. 103, 37 N.E. 355; Maris v. Masters (1903), 31 Ind.App. 235, 67 N.E. 699; Warner v. Marshall (1906), 166 Ind. 88, 75 N.E. 582; Howard v. Adkins (1906), 167 Ind. 184, 78 N.E. 665.

It is also settled that parol evidence is competent to apply the terms of a contract to the subject-matter. Colerick v. Hooper (1852), 3 Ind. 316, 56 Am. Dec. 505; Tewksbury v. Howard, supra; Warner v. Marshall, supra, and cases cited.

It is not the office of a description to identify land, but to furnish the means of identification. Warner v. Marshall, supra, and cases cited.

An indefiniteness or ambiguity that may be made certain or clear by such explanatory evidence as is admissible under the rules of evidence, is not to be treated as vitiating the instrument. Warner v. Marshall, supra. In such case, while the written contract may not be varied or contradicted by parol evidence, such evidence may be admitted to explain its obscure passages; not for the purpose of changing the contract, but of developing the true sense and intention of the parties. Warner v. Marshall, supra.

The restrictions of this proposition are illustrated by the following quotation from observations of Mr. Justice Holmes, set out with approval in Warner v. Marshall, supra: "I do not suppose that you could prove, for purposes of construction as distinguished from avoidance, an oral declaration or even an agreement that words in a dispositive instrument making sense as they stand should have a different meaning from the common one; for instance, that the parties to a contract orally agreed that when they wrote 500 feet it should mean 100 inches, or that Bunker Hill Monument should signify Old South Church [12 Harvard Law Rev. 417, 420]."

The principles to be applied in cases like the present are well defined and settled. The difficulty lies in the application of the principles. We here give some illustrations of obscure descriptions that have been held to be sufficient. "My lot * * * on the plat in the town of South Bend; on the plat of said town on the river bank" Colerick v. Hooper, supra. "Convey * * * to Thomas Bartlett * * * all right, title and interest, claim and demand, in and to all the estate, real and personal, * * * which it is or may be our right, * * * to have, hold, or receive as heir at law of Thomas Barnes, lately deceased." Barnes v. Bartlett (1874), 47 Ind. 98. "All the corn on 200 acres on my farm." Thomas v. Mathis (1884), 92 Ind. 560. "Three lots in this half block, * * * this nice house, * * * the rest of this piece of property." Warner v. Marshall, supra. "The Snow Farm." Hollis v. Burgess (1887), 37 Kan. 487, 15 P. 536. "The Knapp House property." Goodenow v. Curtis (1869), 18 Mich. 298. "The house and lot now occupied by James H. Benham." Angel v. Simpson (1887), 85 Ala. 53, 3 So. 758. "Two lots owned by me in One hundred sixteenth street, New York, between Eighth and Ninth avenues, said lots being twenty-five feet front by about seventy-five feet deep." Waring v. Ayres (1869), 40 N.Y. 357. "My interest in my lands in Lavaca county and also that in Uvalde county." Ragsdale v. Mays (1886), 65 Tex. 255. "Lot thirty Douglas Park." Maris v. Masters, supra. "My right in Benjamin Ryder's (my father's) estate." Ryder v. Loomis (1894), 161 Mass. 161, 36 N.E. 836. "My interest in my mother's estate." Fowler v. Fowler (1903), 204 Ill. 82, 68 N.E. 414. "Property No. 1031 Milwaukee ave." Ullsperger v. Meyer (1905), 217 Ill. 262, 75 N.E. 482, 2 L. R. A. (N. S.) 221. "House and land No. 10 Howard street." Tobin v. Larkin (1903), 183 Mass. 389, 67 N.E. 340. "A conveyance of all land or 'all the property' owned by the grantor, or of all that owned by him in a particular district, is sufficient to convey land within the scope of the description, as is a conveyance of all one's interest in the estate of a person deceased, or of such land as formerly belonged to or was conveyed to a particular person." 2 Tiffany, Real Prop. p. 882.

The answer and cross-complaint aver the devise to appellant by Augustus Ames of the land particularly described therein. They also aver that appellant had no interest in any other lands through Augustus Ames. Neither of these averments is inconsistent or at variance with any of the provisions of the contract. On the contrary, each is in entire harmony with it. These averments were proved, and so found by the court. Supplementing the contract with these explanations, the land to be conveyed is fully identified, and the description becomes definite and certain.

It is also contended that the terms are not set out in the contract. The contract specifies payment of $ 3,000. This implies that the payment is to be in cash. Angel v. Simpson, supra. The payment and conveyance were to be concurrent. In such cases no further terms are required to be specified. Tobin v. Larkin, supra. And where payment and conveyance are to be concurrent, it also seems to be the rule that no tender by the purchaser is necessary, where it is shown that he has at all times been ready and willing to perform.

In Cole v. Killam (1905), 187 Mass. 213, 72

N.E 947, the court said: "The defense is that plaintiff made no tender of the purchase price. It is true that no formal tender was made, but it was unnecessary. In a case like this, where the stipulations are that the one shall pay the money and the other shall execute a conveyance, and there is no provision that either is to be done first, the covenants are mutual and dependent. The one is not bound to pay without receiving his deed,...