Gilbert v. Wright
| Decision Date | 22 February 1928 |
| Docket Number | 20. |
| Parties | GILBERT et al. v. WRIGHT. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Pasquotank County; Clayton Moore Special Judge.
Action by Mrs. O. F. Gilbert and husband against S. G. Wright. Judgment for plaintiffs, and defendant appeals. Affirmed.
Contract for sale of home lot and "vacant lot" implied proximity of vacant lot to home lot.
Action for specific performance. Mrs. R. W. Parsons owned a lot situated in Elizabeth City on Pennsylvania avenue and Cypress street, and the feme plaintiff owned an adjoining vacant lot. Some time before January 1, 1925, Mrs. Parsons, Mrs. Gilbert and the defendant entered in the following agreement:
"Agreement made between O. F. Gilbert, agent, for Mrs. R. N. Parsons and Dr. S. G. Wright of a sale of her home property on Penn. avenue and Cypress street; O. F. Gilbert sells the property for Mrs. Parsons for five hundred dollars and other considerations; deed to be forwarded draft attached to the First and Citizens' National Bank for balance due; Dr. Wright agrees to buy the vacant lot from Mrs. O F. Gilbert during the month of January, 1925, for the sum of fifteen hundred dollars; check for five hundred dollars is hereby acknowledged by O. F. Gilbert.
O. F. Gilbert, Agent.
S. G. Wright."
The defendant refused to comply with his contract with the feme plaintiff, and she brought suit to compel him to accept a conveyance of the lot and to pay the purchase price. At the close of the plaintiff's evidence the defendant moved for judgment of non-suit; whereupon the parties agreed that if the motion was not granted the plaintiff should have judgment for the purchase price and for costs. The motion was refused, and judgment was signed in accordance with the agreement. The defendant excepted and appealed.
Aydlett & Simpson, of Elizabeth City, for appellant.
J. B. Leigh and McMullan & LeRoy, all of Elizabeth City, for appellees.
The defendant has accepted from Mrs. Parsons a conveyance of the "home property on Pennsylvania avenue," but has refused a deed for "the vacant lot," on the ground that the alleged contract with Mrs. Gilbert does not comply with the statute of frauds and cannot be enforced. C. S. § 988. His specific objection is that the description of the property is insufficient, that the location of the lot is not given, that the owner is not designated, and that parol evidence is not admissible "to fit the description to the thing."
If the parties leave the subject of their contract in a state of absolute uncertainty, the courts will not ordinarily decree specific performance, as, for example, where property is described as "a certain parcel of land in the county of Person, to contain by contract 200 acres," or as "a plantation and permanent home for life." Allen v. Chambers, 39 N.C. 125; Mallory v. Mallory, 45 N.C. 82. In such case parol evidence is not admissible in aid of the description. But the rule excluding parol evidence has its limitations. While the contract must contain a description of the land to be sold, it is not essential that the description be so minute or particular as to make resort to extrinsic evidence unnecessary. Lewis v. Murray, 177 N.C. 17, 97 S.E. 750. The line of separation is the distinction between a patent and a latent ambiguity. If the ambiguity is patent, the instrument must speak for itself, and evidence dehors is not admissible in explanation; but if it is latent, evidence dehors is both competent and necessary. The former raises a question of construction; the latter a question of identity. Institute v. Norwood, 45 N.C. 65; Capps v. Holt, 58 N.C. 153; Harrison v. Hahn, 95 N.C. 28. Several cases illustrating the distinction and stating the principle upon which it rests are cited in Farmer v. Batts, 83 N.C. 387, and in Blow v. Vaughan, 105 N.C. 198, 10 S.E. 891, to which may be added a number of others more recently decided.
In Carson v. Ray, 52 N.C. 609, 78 Am. Dec. 267, the premises which were the subject of the contract were described as "my house and lot in the town of Jefferson, in Ashe county, North Carolina," and it was held that the description was sufficiently certain to identify the property. After suggesting that such a description as "a house and lot" or "one house and lot," would be too indefinite and that the words, "my house and lot" import particular property, the court said:
"Where the deed or will does not itself show that the grantor or devisor had more than one house and lot, it will not be presumed that he had more than one, so that there is no patent ambiguity, and if it be shown that he has more than one, it must be by extrinsic proof, and the case will then be one of a latent ambiguity, which may be explained by similar proof."
In Murdock v. Anderson, 57 N.C. 77, the property was described as "one house and lot in the town of Hillsborough," not "my house and lot," as quoted in Blow v. Vaughan, supra; and although this description is followed by the clause, "purchased of me by him for the sum of three hundred and fifty dollars," there was no written instrument...
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