Howison v. Bartlett

• Decision Date: 28 April 1906
• Citation: 40 So. 757,147 Ala. 408
• Parties: HOWISON v. BARTLETT ET AL.
• Court: Alabama Supreme Court

40 So. 757

147 Ala. 408

HOWISON v. BARTLETT ET AL.

Supreme Court of Alabama

April 28, 1906

Appeal from Chancery Court, Bibb County; Thomas H. Smith Chancellor.

"To be officially reported."

Bill by Arthur S. Bartlett and others against Allen P. Howison. From a decree in favor of plaintiffs, defendant appeals. Affirmed.

Pettus Jeffries & Partridge, for appellant.

J. F Thompson, for appellees.

DENSON J.

This is the second appeal by Allen P. Howison from a decree of the chancery court of Bibb county overruling a demurrer to a bill filed against him by Arthur S. Bartlett and others to have a contract for the sale of lands and timber rights specifically performed. The decree of the chancellor was affirmed on the former appeal. When the case returned to the chancery court the complainants amended the bill, and the demurrer to the bill as amended was renewed. Notwithstanding the amendment, the questions presented by the present record for determination by this court are precisely those that were determined on the former appeal. So that, unless the court recedes from the views held and conclusion announced on that appeal, an affirmance of the decree of the chancellor must follow. Howison v. Bartlett, 141 Ala. 593, 37 So. 590.

The contract of which specific performance is sought exists by virtue of an option to purchase lands given by respondent and an acceptance thereof by complainants Bartlett, Robertson, and Ensign, whose property rights thereby acquired have been assigned to the complainant corporation. The entire contract is made an exhibit to the bill and is contained in three papers of different dates. The bill states that on the 30th day of May, 1901, complainants made a contract to buy from Howison other and different lands, and did afterwards buy as agreed. The contract here sued on, called an "option," is a part of the first contract, and is as follows: "Said first party, in consideration of the premises, hereby gives to second party an option to purchase two other tracts of timber land and timber rights or either of said parcels; one known as the 'Active Tract,' consisting of about three thousand acres, more or less, in the vicinity of Active, Bibb county, Alabama, and the other known as the 'Trio Tract,' consisting of about five thousand acres, situated near Trio, in said county and state, and constituting all the virgin growth, long leaf, yellow pine timber lands and rights owned by the first party in T. 22, R. 11--10--9 east of Cahaba river, at the price of six dollars per acre, and said option to be exercised within ninety days from date. If the option is accepted, then purchase to be consummated on the same terms and conditions as herein above mentioned, except as to price per acre. This option relates only to virgin growth, long leaf, yellow pine timber lands and timber rights which have not been cut over or denuded." The terms and conditions (except that we substitute $6 per acre for $5.55 per acre) are as follows: "Second parties hereby agree to and do purchase said lands and timber rights and agree to pay therefor as follows: Six dollars per acre, which said sum said second parties are to pay as follows: Fifteen thousand dollars ($15,000.00) cash on execution of this agreement, balance within thirty days after completion and delivery of surveys and abstracts of title as hereinafter provided. Said first party agrees to furnish at his own expense said second parties full abstracts of title to all said real estate and timber rights, showing good, marketable title thereto. Said premises are to be at once surveyed by some competent surveyor to be mutually agreed on by the parties hereto, and said real estate and timber right mapped and plotted, and the lines and corners sufficiently marked to designate the outside boundaries of said land, and the number of acres of land and the timber rights computed, and the expense thereof shall be borne by the parties hereto equally." On July 18, 1901, the respondent executed a written agreement in these words: "For value received I hereby extend the written option on the Active and Trio properties for the period of sixty days from August 30, 1901." On October 25, 1901, respondent, together with complainants Bartlett, Robertson, and Ensign, signed a writing as follows: "Option as to Active and Trio tracts accepted October 25th, 1901. Abstracts of title and survey and map to be furnished within thirty days from date, and deeds to be delivered and purchase price paid within ten days thereafter."

As was stated in the opinion on the former appeal: "To defeat the bill the respondent urges only those grounds of the demurrer which are interposed upon the assumption that the contract is incomplete for want of survey by a surveyor agreed on by the parties, and that the contract is fatally uncertain as to the property intended to be transferred." It is an elementary principle in equity jurisprudence that specific performance will not be decreed of an agreement for sale, unless the property to be conveyed is fixed with certainty as to the locality and description of the land. This principle is equally applicable with respect of the price to be paid. Waterman on Specific Performance of Contracts, §§ 154, 147; Cox v. Cox, 59 Ala. 592. The reason for this principle is obvious, and was stated by Judge Story in this language: "For a court of equity ought not to act upon conjecture; and one of the most important objects of the statute of frauds was to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn, written contracts." 1 Story's Eq. § 764. While the foregoing is true, yet it is equally true that it is not indispensable that the land should be so accurately described as to leave no doubt as to what is meant; evidence dehors the contract being admissible to explain ambiguous terms, under the maxim, "That is certain which may be made certain." This principle was recognized in the opinion of the court on the former appeal in this case in this language: "Neither the statute of frauds nor any principle governing specific performance requires such definite...