Chaney v. Noland

• Decision Date: 25 November 1964
• Citation: 387 S.W.2d 308
• Parties: Wilson CHANEY et al., Appellants, v. A. D. NOLAND et al., Appellees.
• Court: United States State Supreme Court — District of Kentucky

Page 308

387 S.W.2d 308

Wilson CHANEY et al., Appellants, v. A. D. NOLAND et al., Appellees.

Court of Appeals of Kentucky.

Nov. 25, 1964.

Rehearing Denied March 19, 1965.

H. M. Shumate, Shumate, Shumate & Flaherty, Irvine, for appellants.

James E. Thompson, Shackelford, Burnam & Thompson, Richmond, for appellees.

PALMORE, Judge.

Wilson Chaney and wife, Sarah, appeal from a judgment of the Estill Circuit Court denying them specific performance of an agreement for the sale of land. The basis of the judgment is the statute of frauds, KRS 371.010(6).

The appellees, A. D. and Hazel H. Noland, purchased a tract of some 700 acres known as the Carl Williams farm. The Chaneys were tenants on the farm and wished to buy a part of it. Negotiations resulted in an agreement by the Nolands to convey the Chaneys 54 acres for $3,000. Prior to the date of the agreement the parties had gone on the ground and marked off the boundaries of the 54 acres. However, when the agreement finally was reduced to a written memorandum the writing itself did not contain any reference from which the 54 acres could be identified. This written evidence of the agreement was a receipt reading as follows:

"6/15/1961

                  Received of Wilson Chaney
                Two hundred Fifty and 00/100 ...................................... Dollars
                For Payment on part of Carl Williams Farm as agreed Deed to be
                made February 1, 1962
                Previous Balance ................................................ $3,000.00
                Amount Paid ........................................................ 250.00
                Balance due ...................................................... 2,750.00
                                A. D. Noland
                                By Hazel H. Noland"
                

On February 12, 1962, counsel for the Chaneys prepared a deed for execution by the Nolands. Mr. Noland signed and acknowledged it, but a question arose concerning the tobacco base, and the parties went over to the ASC office to see if the entire allotment could be assigned to the portion of the farm being retained by the Nolands. Upon being informed this could not be done, the Nolands refused to complete the transaction. Mrs. Noland never signed the deed.

The farm of which the 54 acres were a part had been conveyed to the Nolands by a deed describing the entire 700 acres or so in a single metes and bounds perimeter. The memorandum of June 15, 1961, makes no reference to the stakes the parties had set out on the premises or to any other physical mark or extrinsic circumstance that would serve as a roadsign to indicate the specific 'part of Carl Williams Farm' covered by the agreement. Therefore, it falls victim to the statute of frauds and the trial court correctly so held. Cf. Roberts v. Bennett, 166 Ky. 588, 179 S.W. 605, L.R.A.1916C, 1098 (1915).

'It is * * * the well-recognized rule in this state that the written contract or memorandum of the sale of real estate * * * must itself furnish the means of identifying the subject-matter thereof; and such a description of the land in the contract or memorandum which fails to furnish such means of identification is insufficient, and does not satisfy the statute of frauds.' Kentucky Counties Oil Co. v. Cupler, 204 Ky. 799, 265 S.W. 334, 335 (1924).

Each of the decisions cited by the Chaneys was a case in which the writing itself provided an avenue of identification. In Mahaffey v. Wilson, Ky., 317 S.W.2d 888 (1958), for example, the property was described as 'My Drive-in Theatre on Highway 11,' and this was held clearly sufficient to identify it. In McNamara v. Marcum, 290 Ky. 625, 162 S.W.2d 205 (1924), the agreement described the subject-matter as all of the interests acquired by the promisor in a certain deed, reference to which made the identity of the property unmistakable. In Montgomery v. Graves, 301 Ky. 260, 191 S.W.2d 399 (1945), a designation by street number was held sufficient despite omission of the name of the city. Of all the precedents urged against the judgment in the instant case, only Parke v. Spurlin, Ky., 268 S.W.2d 33 (1954), gives pause. However, its facts are different, and even if the correctness of the result be arguable, it is certain that there was no intention to change the fundamental principles that are applicable to this type of case.

It is further contended that the deed signed by Mr. Noland, in which the 54 acres were properly described, is a sufficient writing within the terms of the statute.

'A sharp conflict exists on the question whether an undelivered deed will satisfy the statute of frauds as a memorandum of the contract of sale.' 49 Am.Jur. 694 (Statute of Frauds, Sec. 391). Delivery of a deed is, of course, a prime requisite of its legal efficacy, but it does not follow that delivery should be essential to the sufficiency of a writing in order to satisfy the statute of frauds. The question in a case involving the statute 'is not whether there is a written contract, but whether there is a sufficient memorandum signed by the party which is evidence that a...