Calvi v. Bittner

• Decision Date: 21 December 1961
• Citation: 17 Cal.Rptr. 850,198 Cal.App.2d 312
• Court: California Court of Appeals Court of Appeals
• Parties: Rico CALVI and Rose Calvi, his wife, Plaintiffs and Appellants, v. Mrs. Estle BITTNER, aka Estle Williams, aka Estle Williams Bittner, Defendant and Respondent. Civ. 20168.

Page 850

17 Cal.Rptr. 850

198 Cal.App.2d 312

Rico CALVI and Rose Calvi, his wife, Plaintiffs and Appellants, v. Mrs. Estle BITTNER, aka Estle Williams, aka Estle Williams Bittner, Defendant and Respondent.

Civ. 20168.

District Court of Appeal, First District, Division 2, California.

Dec. 21, 1961.

Leon J. Libeu, Sebastopol, for appellants.

Thiele & Loughborough, Santa Rosa, for respondent.

AGEE, Justice.

Plaintiffs, husband and wife, appeal from an adverse judgment entered upon the sustaining of a general demurrer to their complaint, without leave to amend. The complaint seeks (1) reformation and specific performance of a deposit receipt agreement for the sale of land to them by defendant, together with damages sustained as a result of defendant's refusal to perform, and (2) for damages in lieu of specific performance if the latter cannot be had.

The basis of the lower court's ruling, as stated in its memorandum, is that the description of the land as contained in the agreement is too indefinite and uncertain to permit specific performance or damages.

The agreement recites that the land is situated in Section 33, Township 7 North, Range 10 West, M. D. B. & M., in the County of Sonoma, State of California, and is described as follows: 'Real property and improvements thereon, as is, where is, as particularly described under OR 1592-471 and AP 73-28-12, saving and excepting therefrom 1 acre in the southeast corner, and approximately 2 1/2 acres in the northeast corner, leaving approximately 139 acres, more or less.' A copy of the agreement is attached to the complaint.

The complaint alleges that by the mistake of the real estate broker who was employed by defendant and who prepared the agreement, and by the mutual mistake of the parties, the description of said property by reference to 'OR 1592-471' was in error in that the property described in the deed on record in Book 1592, page 471, Official Records of Sonoma County, was not owned in its entirety by the defendant and that the plaintiffs did not intend to buy nor did defendant intend to sell, nor could defendant have sold to plaintiffs, the land so described.

These allegations are sufficient to justify the revision or reformation of the description by striking therefrom 'OR-1592-471 and' (Civ.Code, sec. 3399). Defendant does not dispute this.

Was The Main Parcel of Land Sufficiently Described?

An agreement, the terms of which are not sufficiently certain to make the precise act which is to be done clearly ascertainable, cannot be specifically enforced. (Civ.Code, § 3390.) The essential terms for the sale of land are the parties, the price, the time and manner of payment, and the property to be transferred, described so that it may be identified. (King v. Stanley, 32 Cal.2d 584, 589, 197 P.2d 321.) The description of the property is one of the most essential parts of such an agreement. (Beverage v. Canton Placer Mining Co., 43 Cal.2d 769, 774, 278 P.2d 694.) The reason is said to be that a party obtaining specific enforcement of such a contract is entitled only to a decree compelling the other party to convey the identical property which he agreed to convey, and in order that this may be done the land must be so described that it may readily be identified from such description. (Hines v. Copeland, 23 Cal.App. 36, 39-40, 136 P. 728.)

The law is extremely liberal in favor of the sufficiency of descriptions of land in contracts to convey realty. Much less certainty and particularity of description are required in a contract to sell land than in a deed conveying that land. (Wright v. Wilson Co., Inc., 212 Cal. 569, 573-574, 299 P. 521; Russell v. Ramm, 200 Cal. 348, 369-370, 254 P. 532; Johnson v. Schimpf, 197 Cal. 43, 48, 239 P. 401; Diffendorf v. Pilcher, 116 Cal.App. 270, 272, 2 P.2d 430; United Truckmen, Inc. v. Lorentz, 114 Cal.App.2d 26, 29-30, 249 P.2d 352; Ralston v. Demirjian, 86 Cal.App.2d 124, 126-127, 194 P.2d 41.) The description must, however, be such, either in terms or by reference, that the property can be ascertained without resort to parol evidence for the purpose of supplying a description. (Craig v. Zelian, 137 Cal. 105, 106, 69 P. 853; Burge v. Krug, 160 Cal.App.2d 201, 208, 325 P.2d 119; Gordon v. Perkins, 108 Cal.App. 336, 340, 291 P. 644; Simpson v. Schurra, 91 Cal.App. 640, 267 P. 384.) Such parol evidence is admissible only for the purpose of identifying the description contained in the writing with its location upon the ground. (ibid.)

It is well settled that where a deed refers to a map or other instrument with a reference sufficiently certain to identify it, that instrument is regarded as incorporated in the deed as part of it. (Danielson v. Sykes, 157 Cal. 686, 690, 109 P. 87, 28 L.R.A.,N.S., 1024; Troeger v. Fink, 166 Cal.App.2d 22, 24, 332 P.2d 779; Hoffman v. Van Duzee, 19 Cal.App.2d 517, 65 P.2d 1330 [map]; Edwards v. Lewis, 25 Cal.App.2d 168, 172, 76 P.2d 720.) All of these cases just cited involve deeds but, as we have stated, an even more liberal rule is followed by courts of equity in dealing with contracts to sell land.

Here, the complaint alleges that the reference in the deposit receipt agreement to 'AP 73-28-12' is to parcel 12 as shown on page 28 of Book 73, Sonoma County Assessor's Parcel Map, and that this parcel was at all times therein mentioned owned by defendant and is the identical property which defendant offered to sell and plaintiffs agreed to buy under the terms of said agreement; that a particular description of said property is attached to the complaint and is identical to that shown on said assessor's map, as referred to above.

This description is in form a complete legal description of the property. A competent surveyor would have no difficulty in locating the land and establishing its boundaries from this description. This has often been stated to be a test for determining the sufficiency of a description. (Best v. Wohlford, 144 Cal. 733, 738, 78 P. 293; Sequoia Investment Corp. v. Paillard, 135 Cal.App.2d 166, 171, 286 P.2d 857; United Truckmen v. Lorentz, supra, 114 Cal.App.2d 33, 249 P.2d 352; McKevitt v. City of Sacramento, 55 Cal.App. 117, 127, 203 P. 132.)

We conclude, therefore, that the main parcel of land, without the exclusion of the two excepted portions, is sufficiently described in the deposit receipt agreement. In so holding, we are not supplying a description to the agreement but are merely allowing the description contained therein to be identified by parol evidence with its location upon the ground. (Craig v. Zelian, supra.)

Were The Exceptions Sufficiently Described?

The description of the two exceptions follows immediately after the description of the main parcel and is in the following words: 'saving and excepting therefrom one acre in the southeast corner and approximately 2 1/2 acres in the northeast corner, leaving approximately 139 acres, more or less.'

The court below, in its order sustaining the general demurrer, stated: 'There is no way that the description, 'saving and excepting therefrom * * * approximately 2 1/2 acres in the northeast corner, leaving approximately 139 acres, more or less,' can actually be delineated on the ground without orally supplying missing elements of the description.'

Plaintiffs rely upon Denbo v. Senness, 120 Cal.App.2d 863, 262 P.2d 31, 32, which was an action for specific performance of a contract for the sale of land described as '2 acres of that tip of Lot 1, Tr. 9765, City of Torrance, facing on Pacific Coast Highway and Newton St.' The court had no difficulty in locating 'Lot 1' or the junction of 'Pacific Coast Highway and Newton St.' at the 'tip' of Lot 1. 'Tip' was defined as the 'pointed end' or 'apex' of the lot. This was held to be a sufficient description, the court stating: 'Two acres of the tip of Lot 1, as described, would have to take in the point or apex of the triangle between the two streets. No other two acres would fit the description.' (p. 866, 262 P.2d p. 33.) In United Truckmen, Inc. v. Lorentz, supra, the following description, when aided by parol evidence, was held sufficient to justify specific performance: "* * * The southerly portion of that certain property being under the name of Ernest Lorentz, Sr., and bounded on the East by South Tenth Street and on the South by the Western Pacific Railroad, being about 275 feet on South Tenth Street by approximately 500 feet deep, containing about 3 acres. * * *" [114 Cal.App.2d 26, 249 P.2d 353.] However, as pointed out in Ganiats Construction, Inc. v. Hesse, 180 Cal.App.2d 377, 391, 4 Cal.Rptr. 706, both of these cases supplied descriptions of two sides of the property involved and the property might readily be identified by a competent surveyor, with reasonable certainty.

In the instant case, the reference is only to acreage in a designated corner of the tract. 'An acre can be a circular, square, triangular, irregular, broad or narrow strip of land. Indeed, an acre is not a concrete form; it is a term of quantity and it can be applied to land in all manner of patterns.' (Ganiats, supra, p. 384, 4 Cal.Rptr. p. 711.) As stated by the court below in the instant case: 'The words in the description 'in the northeast corner' would seem to imply that the land must be either in a square or triangle. However, this in itself illustrates the obvious missing elements of the description, since it cannot be ascertained from the description whether the shape should be a square or triangle.'

Specific performance is not precluded by reference to the exception in the northeast corner as 'approximately 2 1/2 acres.' (Emphasis added.) As we have seen in United Truckmen, Inc. v. Lorentz, supra, the terms 'about' and 'approximately' were both used in that description. Nor does the expression, 'leaving approximately 139 acres, more or less,' vitiate the description. (Nickerson v. San Bernardino, 179 Cal. 518, 526, 177 P. 465; Board of Commissioners v. Younger, 29 Cal....