Harper v. Pauley, No. 10572

CourtSupreme Court of West Virginia
Writing for the CourtGIVEN; Plaintiff; HAYMOND
Citation139 W.Va. 17,81 S.E.2d 728
Decision Date05 May 1954
Docket NumberNo. 10572
PartiesHARPER, v. PAULEY et al.

Page 728

81 S.E.2d 728
139 W.Va. 17
HARPER,
v.
PAULEY et al.
No. 10572.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 22, 1953.
Decided Dec. 1, 1953.
Dissenting Opinion May 5, 1954.

Page 730

Syllabus by the Court.

'Every agreement required by the statute of frauds to be in writing must be

Page 729

certain in itself or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable certainty. And in contracts for the sale of lands the court may go outside of the writing for the purpose of identifying and ascertaining the land sold, where general words of description capable of being made certain are used in the writing.' Point 2, Syllabus, White v. Core, 20 W.Va. 272.

J. Campbell Palmer, III, Robert L. Elkins, Charleston, for appellants.

Kay, Casto & Chaney, Vincent V. Chaney, Charleston, for appellee.

GIVEN, Judge.

Plaintiff, J. B. Harper, instituted a chancery proceeding in the Circuit Court of Kanawha County praying for [139 W.Va. 18] specific performance of a written option relating to the sale of real estate, the title to which was vested in one of the defendants, Rhodie Pauley, wife of the other defendant, George H. Pauley. The wife filed an answer denying material allegations of the bill of complaint, except that she admitted signing the option. She alleged that an attempted renewal or extension of the option by plaintiff, in accordance with provisions thereof, was abortive for the reason that it was not timely made, that 'she was suffering from a serious illness and was not in any condition to transact business or to understand fully the nature of said transaction at that time', and that she was not afforded an opportunity to read the option. The bill of complaint was amended for the purpose of bringing before the court the dower interest of the husband, and demurrers of the husband to the original bill of complaint and the amended bill of complaint were overruled.

Depositions were taken by the parties litigant and the cause was submitted to the court for decision. On September 30, 1952, the circuit court, by memorandum opinion, advised counsel for the parties of its findings, all in favor of plaintiff, and directed the preparation of a decree granting specific performance as prayed for. The decree, however, was not actually entered until the first day of December, 1952. The record is not clear as to the reason for the delay, but apparently it was with the understanding or agreement of counsel representing the parties.

On the day the final decree was entered, and apparently before the actual entry thereof, defendants filed a plea of the statute of frauds, plaintiff filed a demurrer thereto, and the court 'On consideration whereof', sustained the said demurrer and decreed the plea to be insufficient. On the same day the wife tendered for filing a petition praying permission to amend her answer, which petition the court refused to file. Also, on the same day defendants tendered for filing a petition praying for a rehearing, which petition the court filed and, at the same time, filed [139 W.Va. 19] an answer of plaintiff to that petition. The decree filing the last mentioned petition and answer recites that the court 'duly considered the said petition and answer', and the court 'decreed that the prayer of said petition be and the same is hereby denied'.

The option mentioned, dated March 7, 1950, was executed only by Rhodie Pauley. It recited a consideration of ten dollars, and the amount of the purchase price to be paid for the real estate in the event of the exercise of the rights granted was nine thousand dollars. The option purported to grant unto plaintiff the exclusive right to purchase, at any time within two months, 'all that certain tract or parcel of land situate on the waters of Davis Creek in Loudon District of Kanawha County, West Virginia, more particularly described as follows: Being all of four tracts of land: Tract No. 1, comprising 33 1/2 acres and tract No. 2 comprising 10 A. more or less and tract No. 3 comprising 10 acres more or less and tract No. 3 containing 10 acres more or less, and tract No. 4 containing 15 acres more or less all on Middle Fork of Davis Creek'. The option also granted to plaintiff 'the right to extend this option for 2 successive periods of 2 months by paying to the undersigned the

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sum of fifty Dollars ($50) for each such extension before this option or any extension thereof has expired'.

The depositions disclose that the real estate involved was purchased by defendants about 1936; that the whole purchase price therefor was paid by the defendant George H. Pauley; that, agreeable to him, if not at his instance, title thereto was placed in the name of Rhodie Pauley; and that the option in question was executed by the wife without any knowledge of her husband. Very little evidence, if any, was produced in support of the contention relating to incompetency of Rhodie Pauley at the time of execution and delivery of the option. Substantial evidence was introduced by plaintiff indicating competency. The evidence is in sharp conflict as to the contention relating to the failure of plaintiff to elect to extend the time within which [139 W.Va. 20] the privilege of exercising the rights granted by the option could be exercised. Therefore, we can not say that the findings of fact of the trial chancellor are plainly wrong.

The controlling question in the cause relates to the sufficiency of the description of the real estate involved, raised by the action of the court in sustaining plaintiff's demurrer to the plea of the statute of frauds and by the action of the court in denying the relief prayed for in the petition for rehearing filed and considered by the court, which petition alleged the invalidity of the option because of the insufficiency of the description. Numerous other assignments of error are made, but we think the conclusions reached by this Court as to the controlling question render any discussion of them unnecessary, except as to a contention to the effect that defendants waived any question of the sufficiency of the description of the real estate.

The applicable statute, Code, 36-1-3, reads: 'No contract for the sale of land, or the lease thereof for more than one year, shall be enforceable unless the contract or some note or memorandum thereof be in writing and signed by the party to be charged thereby, or by his agent. But the consideration need not be set forth or expressed in the writing, and it may be proved by other evidence.'

As before noted, the plea is based upon the premise that the land involved is not described with sufficient particularity in the option. The description is quoted above. It is conceded that Tract No. 3 is mentioned twice in the description, so that the actual information furnished by the description is simply four tracts of land containing thirty-three and one-half acres, ten acres, ten acres and fifteen acres, respectively, on Middle Fork of Davis Creek in Loudon District of Kanawha County. No further information as to the identity of the land intended to be described is found in any other part of the option, and no reference is made in the option to any record, deed or other instrument.

[139 W.Va. 21] The purpose of the quoted statute, commonly referred to as the statute of frauds, is to prevent fraud by requiring that a contract for the sale of real estate, or a note or memorandum thereof, be in writing. Ross v. Midelburg, 129 W.Va. 851, 865, 42 S.E.2d 185. The statute protects both the vendor and the vendee. Brown v. Gray, 68 W.Va. 555, 70 S.E. 276, 37 L.R.A., N.S., 901 note; 47 L.R.A.,N.S., 875 note; 15 A.L.R. 76 note. 'A memorandum in writing, relied on to take a contract out of the operation of the statute, must contain every essential element of the agreement, except it need not state the consideration.' Point 2, Syllabus, Bradley Co. v. Moore, 91 W.Va. 77, 112 S.E. 236. See Rahm v. Klerner, 99 Va. 10, 37 S.E. 292. The rule requiring certainty as to every essential element of such a writing requires that the description of real estate contained in such a writing be reasonably certain. That which may be made certain, however, is regarded as certain. Bradley v. Moore, supra. 'The law of description in deeds is that of reasonable certainty only; 'but the degree of certainty required is always qualified by the application of the rule that that is certain which can be made certain. A deed will not be declared void for uncertainty if it

Page 732

is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. The office of a description is not to identify the land, but to furnish means of identification.'' Simpkins v. White, 43 W.Va. 125, 27 S.E. 361. As will appear from numerous decisions cited later in this opinion, this Court has followed, as have Courts of most other jurisdictions, this liberal rule relating to descriptions of real estate in such writings.

The rule relating to the admission of extrinsic evidence in such cases is stated by this Court in Mathews v. Jarrett, 20 W.Va. 415, at page 422: 'It is an elementary principle that a contract which a court of equity will specifically enforce must be certain as well as fair in its terms; and the certainty required has reference both to the description of the property and the estate to be conveyed. Uncertainty as to either, not capable of being removed by extrinsic[139 W.Va. 22] evidence, is fatal to any suit for a specific performance. Preston v. Preston, 95 U.S. 200, 24 L.Ed. 494. Extrinsic evidence, however, is only admissible to a very limited extent and for purposes well defined and limited. It cannot be used to supply any defect or omission in the terms of the written contract; it is strictly confined, in cases where no fraud, mistake or other equitable incident of a similar...

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7 practice notes
  • Timberlake v. Heflin, No. 17978
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...capable of being made certain are used in the writing.' Point 2, Syllabus, White v. Core, 20 W.Va. 272." Syllabus, Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 6. After the execution of a valid contract of sale and before the legal title passes by deed, the vendor is regarded in equit......
  • Sally-Mike Properties v. Yokum, SALLY-MIKE
    • United States
    • Supreme Court of West Virginia
    • July 3, 1985
    ...the property intended to be affected. See Syl. pt. 5, Consolidation Coal Company v. Mineral Coal Company, supra; Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953); Jones v. Gibson, supra; Foley v. Ruley, 43 W.Va. 513, 520, 27 S.E. 268, 271 (1897); Simpkins v. White, 43 W.Va. 125, Page 60......
  • In re Hard Rock Exploration, Inc., CASE NO. 2:17–bk–20459
    • United States
    • United States Bankruptcy Courts. Fourth Circuit. U.S. Bankruptcy Court — Eastern District of Virginia
    • December 18, 2017
    ...to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey." Harper v. Pauley , 139 W. Va. 17, 21, 81 S.E.2d 728, 731–32 (1953) ; see also Sally–Mike Properties v. Yokum , 175 W. Va. 296, 301–02, 332 S.E.2d 597, 602 (1985) ; Consolidation Coa......
  • Fry Racing Enterprises, Inc. v. Chapman, No. 23987
    • United States
    • Supreme Court of West Virginia
    • December 17, 1997
    ...20 W.Va. 272 (1882). Accord, Syllabus Point 5, Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989); Syllabus, Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953). By "certain in itself," we mean that within its four corners the writing must contain or refer to the basic te......
  • Request a trial to view additional results
7 cases
  • Timberlake v. Heflin, No. 17978
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...capable of being made certain are used in the writing.' Point 2, Syllabus, White v. Core, 20 W.Va. 272." Syllabus, Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 6. After the execution of a valid contract of sale and before the legal title passes by deed, the vendor is regarded in equity as ......
  • Sally-Mike Properties v. Yokum, SALLY-MIKE
    • United States
    • Supreme Court of West Virginia
    • July 3, 1985
    ...the property intended to be affected. See Syl. pt. 5, Consolidation Coal Company v. Mineral Coal Company, supra; Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953); Jones v. Gibson, supra; Foley v. Ruley, 43 W.Va. 513, 520, 27 S.E. 268, 271 (1897); Simpkins v. White, 43 W.Va. 125, Page 60......
  • In re Hard Rock Exploration, Inc., CASE NO. 2:17–bk–20459
    • United States
    • U.S. Bankruptcy Court — Southern District of West Virginia
    • December 18, 2017
    ...construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey." Harper v. Pauley , 139 W. Va. 17, 21, 81 S.E.2d 728, 731–32 (1953) ; see also Sally–Mike Properties v. Yokum , 175 W. Va. 296, 301–02, 332 S.E.2d 597, 602 (1985) ; Consolid......
  • Fry Racing Enterprises, Inc. v. Chapman, No. 23987
    • United States
    • Supreme Court of West Virginia
    • December 17, 1997
    ...20 W.Va. 272 (1882). Accord, Syllabus Point 5, Timberlake v. Heflin, 180 W.Va. 644, 379 S.E.2d 149 (1989); Syllabus, Harper v. Pauley, 139 W.Va. 17, 81 S.E.2d 728 (1953). By "certain in itself," we mean that within its four corners the writing must contain or refer to the basic terms of the......
  • Request a trial to view additional results

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