Cripe v. Coates

• Decision Date: 14 January 1954
• Docket Number: No. 18418,18418
• Citation: 116 N.E.2d 642,124 Ind.App. 246
• Parties: CRIPE et al. v. COATES et al.
• Court: Indiana Appellate Court

Page 642

116 N.E.2d 642

124 Ind.App. 246

CRIPE et al. v. COATES et al.

No. 18418.

Appellate Court of Indiana, In Banc.

Jan. 14, 1954.

Vernon & Barker, Goshen, for appellants.

Mehl & Mehl, Goshen, for appellees.

ACHOR, Judge.

This is an action brought by appellant for the purpose of having a contract for the exchange of real estate reformed to express the alleged agreement of the parties and for specific performance. The court sustained appellees' demurrer thereto. Appellants refused to plead further and judgment was accordingly entered for appellees. The error assigned is the sustaining of said demurrer. The memorandum to the demurrer contained the following ground:

'No. 1. That the agreement relied upon in plaintiff's third amended complaint, and upon which this action is based is * * * not enforcible because of the Statute of Frauds.

'The amended complaint shows specifically that the following necessary parts of the transaction were left to oral agreements.

'A. Description of real estate and final dimensions.'

The first objection is based upon the Statute of Frauds, with particular reference to the fourth sub-division of § 33-101, Burns' 1949 Replacement, which provides that no action shall be filed 'Upon any contract for the sale of lands. * * * Unless the promise, contract or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, * * *.'

The real estate in controversy is described in the contract executed at Goshen, Indiana, as follows: '* * * property located on the Bashor Chapel Road of Roy Coates which is now under construction to consist of 6 rooms and bath with attached garage when complete * * * The measurements of lot on Bashor Chapel Road is approximately 70 x 200 more or less. * * *' The complaint affirmatively discloses that the 'lot' owned by appellee and intended to be conveyed to appellant, was a part of a larger, unplatted tract (125' X 695'), containing 'two acres, more or less.'- Appellant's complaint also contains the following allegations with respect to the description of the property:

'It was further agreed that said dimensions of said tract to be exchanged and conveyed to the plaintiffs were approximate but that plaintiffs' north line should be a slight rise of land about two hundred feet back and plaintiffs' west line should extend one foot west of the driveway to lead from the garage of said property under construction to the road or highway running east and west past said tract.

* * *

* * *

'That the defendants also agreed to erect a garage in connection with said house with concrete drive to the corner thereof * * *

* * *

* * *

'That on the day after the parties hereto completed their agreement as hereinbefore set forth, the plaintiffs and defendants employed one C. K. Cook, a Realtor of the city of Goshen to reduce said contract to writing but that by the mutual mistake of both plaintiffs and defendants, the said C. K. Cook omitted therefrom the stipulations, legal descriptions and agreements herein set forth.

'That thereafter the contract as prepared by said C. K. Cook, was duly signed and executed by the parties thereto without any knowledge on the part of the plaintiffs and defendants that said contract did not contain in writing the full and complete agreement of the parties.'

The prayer of the complaint is that the written contract be corrected and reformed to express the agreement of the parties, and that specific performance of said agreement, reformed, be decreed to appellants. It is the general rule that, where there has been an agreement actually entered into which the parties have attempted to put in writing but have failed to do so because of a mistake either of themselves or of the scrivener, courts having jurisdiction in matters of equitable cognizance have power to reform the instrument in such manner as to make it express the true agreement. 76 C.J.S., Reformation of Instruments, § 74 b, p. 439; Geoghegan v. Dever, 1948, 30 Wash.2d 877, 194 P.2d 397; Naramore v. Mask, 1948, 52 N.M. 336, 197 P.2d 905; Hippodrome Garage Corporation v. Sixth Avenue & 44th Street Corporation, Sup. Special Term, New York County, Part III, 1948, 84 N.Y.2d 123.

In this state it is settled that a written contract may be reformed upon parol evidence, and then specifically enforced as reformed. Section 2-302, Burns' 1946 Replacement, Gigos v. Cochran, 1876, 54 Ind. 593, 598; Palmer Steel & Iron Co. v. Heat, Light, and Power Co., 1903, 160 Ind. 232, 66 N.E. 690; Froyd v. Schultz, 1913, 260 Ill. 268, 103 N.E. 220.

Therefore, the question for this court to determine is this: If the written agreement be reformed by the court by inserting therein a description of the real estate as given by appellants in their complaint, as being the real estate agreed to be exchanged by appellees, would the description be sufficiently definite to meet the requirements of the Statute of Frauds and enable the court to decree specific performance thereof? In other words, would the description then be sufficient to furnish the means of identification?

The general rule regarding the degree of certainty required in describing the real estate sold in a contract for sale of land has been stated as follows:

'* * * the cases are substantially in agreement on the general proposition that it is not essential that the description have such particulars and tokens of identification as to render a resort to extrinsic aid entirely needless when the writing comes to be applied to the subject matter. The terms may be abstract and of a general nature, if with the assistance of external evidence the description, without being contradicted or added to, can be connected with and applied to the very property intended to the exclusion of all other property. Descriptions omitting town, county, or state where the property is situated have frequently been held sufficient, where the writing provides other means of identification; * * *' (Our italics.) 49 Am.Jur., § 348, Statute of Frauds, pp. 656, 657.

Consistent with this statement of the law, our courts have held that '* * * It is not the office of a description to identify the land, but to furnish the means of identification.' (Cases cited.) "* * * The intent of the parties, if it can by any possibility be gathered from the language employed, will be effectuated." (Cases cited). Warner v. Marshall, 1905, 166 Ind. 88, 107, 75 N.E. 582; See also, Ames v. Ames, 1910, 46 Ind.App. 597, 601, 91 N.E. 509; Dowd v. Andrews, 1922, 77 Ind.App. 627, 632, 134 N.E. 294; Stack v. Commercial Towel, etc., Service, 1950, 120 Ind.App. 483, 496, 91 N.E.2d 790.

However, in applying the above statements of the law to the facts before us, where the tract conveyed is only a part of a larger tract owned by the vendor, the following rule has been enunciated:

'* * * If the premises bargained for are a part of a larger tract owned by the vendor the question whether or not the writing satisfies the statute as to description will depend upon whether within itself or by references made it does or it does not in practical effect describe or designate the part covered by the contract.' (Our italics.) 23 A.L.R.2d, § 13, pp. 31, 32.

We find no cases in this state directly in point. However, there are numerous cases from other states which are highly persuasive as to the effect of the application of the general rule above set forth to the facts before us. Within the terms of this rule various courts have held that where the memorandum of agreement merely describes the area or dimensions of the land sold, but not fixing the boundary between the land sold and the seller's remaining lands, it is insufficient to meet the requirements of the statute of frauds. Michelson v. Sherman, 1941, 310 Mass. 774, 777, 778, 39 N.E.2d 633, 139 A.L.R. 960; Dorsey v. Wayman, 1847, 6 Gill. Md., 59; McMahon v. Plumb, 1914, 88 Conn. 547, 92 A. 113. In the case of Michelson v. Sherman, supra [310 Mass. 774, 39 N.E.2d 635], the court stated:

'The location of the boundary line between the land sold and the land kept by the defendants was an essential element of the oral contract. But no reference whatever to the location of the boundary line appears in the memorandum, and the only description therein of the quantity of land sold was that it consisted of '11000 or more square feet.' Interpreting the scanty language of the memorandum in the light of the physical features of the land and the facts surrounding the parties at the time the memorandum was signed, we are of the opinion that the boundaries of the land sold cannot be identified with sufficient accuracy. In order to satisfy the requirements of the statute the memorandum must contain a description of the land sold that applies to one parcel of land only. (Cases cited.) The memorandum signed by the defendants' agent was not such a memorandum. Its language would fit other parcels of land than the one for which the plaintiff contends. Although the judge, after taking a view, found that the boundary line agreed to by the parties in their oral contract was 'the natural and obvious division of the land,' the memorandum did not meet the requirements of the statute of frauds. * * *'

Also, in the following cases, the descriptions contained in the memorandums were held insufficient: 'Parts of lots 1 and 2 in square south of square 1036. * * *' Repetti v. Maisak, 1888, 6 Mackey D.C. 366, 368; '* * * 'A tract of land to be defined,' * * * 'According to lines and corners previously agreed upon,' * * *' Hyde v. Cooper, 1867, 13 Rich.Eq. 250, 257, 34 S.C.Eq. 250, '* * * thirty acres of land, * * *' where the vendor had a tract from which the same were to be measured off. Humbert v. Brisbane, 1886, 25 S.C. 506, 507; "* * * four (4) acres out of the East end * * *' of a certain larger tract which was adequately described, the court nothing that the description was 'out of' and not 'off of.' Matney v. Odom, 1948, 147 Tex....