Bogard v. Barhan

• Decision Date: 21 July 1908
• Citation: 52 Or. 121,96 P. 673
• Parties: BOGARD v. BARHAN et al.
• Court: Oregon Supreme Court

96 P. 673

52 Or. 121

BOGARD v. BARHAN et al.

Supreme Court of Oregon

July 21, 1908

Appeal from Circuit Court, Marion County; Wm. Galloway, Judge.

Specific performance by Z.T. Bogard against A. Barhan and another. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

This is a suit to compel specific performance of the following contract for an exchange of lands: "Woodburn, Oregon June 16, 1906. This agreement made this date between A Barhan, party of the first part, and Z.T. Bogard, party of the second part, witnesseth: That the party of the first part agrees to transfer to the party of the second part the following described property, the brick store building occupied by Beebe & Whitman located in Woodburn, Marion county, Oregon, also my 15-acre farm located one mile north of Woodburn, Marion county, Oregon, also to pay one hundred dollars cash and give my note for eight hundred dollars payable on or before eight years, in payments of one hundred dollars each year with interest at the rate of 8 per cent payable annually. For this the party of the second part agrees to transfer to the party of the first part his 5-acre residence property lying west of the Catholic Church, and also lot 7, block 2, Tooze's addition to Woodburn. And it is further agreed that the taxes on property of party of the first part is to be assumed by party of second part and that on party of second part to be assumed by party of the first part, and that party of second part is to occupy his residence property until September 30th, and that party of first part is to occupy the 15-acre farm until the party of the second part gives possession of his residence property. A. Barhan, Z.T. Bogard." The amended complaint sets out the contract, and attempts to give a specific description by metes and bounds of the property mentioned in the agreement, and alleges a tender to perform by plaintiff and a refusal to perform by defendant. To this complaint defendant demurs, on the ground that it does not state facts sufficient to constitute a cause of suit. The demurrer was overruled by the court, an answer was filed, a trial had, and a decree rendered for plaintiff, and defendant appeals.

Geo. G. Bingham and E.P. Morcom, for appellants.

Thos. Brown and John A. Carson, for respondent.

EAKIN J. (after stating the facts as above).

By the demurrer the defendant questions the sufficiency of the writing to answer the requirements of the statute of frauds, in this: that it is void for uncertainty of the description, and that the averments of the amended complaint are broader than the memoranda. There are four items of real property mentioned in the agreement, namely, "the brick store building occupied by Beebe & Whitman, located in Woodburn, Marion county, Oregon"; "my 15-acre farm located one mile north of Woodburn, Marion county, Oregon"; "his 5-acre residence property lying west of the Catholic Church"; and "lot 7, block 2, Tooze's addition to Woodburn." None of these descriptions is sufficiently definite within itself to locate or identify the property; and the question is: Are they sufficient to answer the requirements of the statute of frauds? The description or designation of the property in the agreement must be such as to render the intention entirely manifest, and resort cannot be had to extrinsic evidence to determine what property is intended. But though the description of the property in the agreement does not indicate its boundaries, and yet is sufficient to fit and comprehend the property, it is a compliance with the statute of frauds; and resort may be had to extrinsic evidence to ascertain the boundaries or otherwise fix its identity, and apply the description to the very property intended, provided that it does not dispute or add to the agreement. Ryan v. United States, 136 U.S. 68, 10 Sup.Ct. 913, 34 L.Ed. 447; Halsell et al. v. Renfrow et al., 14 Okl. 674, 78 P. 118; Eggleston v. Wagner, 46 Mich. 610, 10 N.W. 37; Browne, Stat. Frauds, § 385; Wood, Frauds, § 353.

That is certain which can be made certain. If the land has, as a tract or lot, acquired a name to distinguish it and by...