Hyden v. Perkins

• Decision Date: 02 December 1904
• Citation: 119 Ky. 188,83 S.W. 128
• Parties: HYDEN v. PERKINS et al.
• Court: Kentucky Court of Appeals

83 S.W. 128

119 Ky. 188

HYDEN v. PERKINS et al.

Court of Appeals of Kentucky.

December 2, 1904

Appeal from Circuit Court, Pulaski County.

"To be officially reported."

Action by Henry Hyden against S. V. Perkins and another. From a judgment in favor of defendants, plaintiff appeals. Reversed.

O. H Waddle, for appellant.

W. A Morrow and J. W. Colgan, for appellees.

HOBSON J.

On October 15, 1900, appellee S. V. Perkins executed to appellant, Henry Hyden, the following writing: "Received of Henry Hyden $20.00 first cash payment on farm of about twenty acres known as the Vaught farm. I hereby agree to deed to said Hyden said land on payment of an additional $105.00 payable as follows: $25.00 in six, twelve months, and $30.00 in eighteen months, and $25.00 in twenty-four months from this date with interest at six per cent. When said sum of $125.00 and interest has been paid I hereby agree to transfer to said Hyden by deed of general warranty said Vaught land consisting of about twenty acres and agree to give possession by January 1, 1901. S. V. Perkins." On February 10 1903, Hyden filed this action, setting up the writing, alleging that he had paid the $20 on the day it was executed, and agreed to pay her the additional sum of $105, payable in 6, 12, 18, and 24 months, as set out in the writing, and in consideration of this she had executed to him the writing; that he afterwards tendered her the $105, with interest, and demanded of her that she should convey him the land and put him in possession of it, and this she refused to do, though she retained the $20 he had paid her; that after his purchase of the land, in violation of her contract, she had sold and conveyed the land to appellee Sol Turpin; and that Turpin had full notice of his purchase, and of the writing executed to him. He prayed a specific performance of the contract, alleging that he was ready, willing, and able to pay the balance of the purchase money. The court sustained a demurrer to the petition, and, the plaintiff declining to plead further, dismissed the action.

In sustaining the demurrer to the petition, the court proceeded on the idea that there was no sufficient description of the property to identify it without resorting to parol evidence and in support of this view we are referred to Linville v. Langford, 47 S.W. 248, 20 Ky. Law Rep. 590; Jones v. Tye, 93 Ky. 390, 20 S.W. 388; Wortham v. Stith, 66 S.W. 390, 23 Ky. Law Rep. 1882. In Linville v. Langford, the action was brought against the widow and heirs at law of Solomon Langford upon two receipts signed by Reuben Langford, and by him alone. The writings were held insufficient because they did not purport to be contracts on behalf of the widow and heirs at law of Solomon Langford, but only the individual contract of Reuben Langford. After so stating, the court concludes its opinion with these words: "There being no written evidence of any contract for sale of the lands in controversy by or on behalf of the widow and heirs at law of Solomon Langford, appellant has stated no cause of action against them, and the demurrer to his petition was properly sustained." In Jones v. Tye it was held that a receipt for purchase money, describing the land as "adjoining the McKibley land," was insufficient. In that case appellant insisted that the land referred to was one tract, and appellee that it was a different tract. It was held that there was not enough in the writing to identify the land sold. Here the description in the writing was insufficient to identify the tract sold, and left it a matter of doubt which of two tracts owned by the vendor was referred to. In Wortham v. Stith the only description of the land contained in the writing was that it was "one hundred and fifteen acres of land which I have this day sold him." Here there was nothing to describe what land was sold by the vendor, except that it was 115 acres. There was nothing to identify the 115 acres that was included in the sale. In the case before us the contract was signed by S. V. Perkins, who owned the land, and therefore Linville v. Langford has no application. The tract which was agreed to be conveyed is described as a "farm of about twenty acres known as the Vaught farm." This is a very different description from a bare statement that the land sold adjoins another tract, or that it consists of a certain number of acres. The general rule as to the sufficiency of description is thus stated in Browne on the Statute of Frauds, § 385: "But the subject-matter may in any case be identified by reference to an external standard, and need not be in terms explained. Thus to describe it as the vendor's right in a particular estate, or as the property which the vendor had at a previous time purchased from another party, is sufficient. And it is very common to identify the debt of a third person, for which the defendant has made himself responsible, as the debt then owing or to become owing by such third person to the plaintiff, without further description. Where the memorandum described the land as the estate owned by the seller on a certain street, and it appeared that he owned two estates on that street, to either of which the description might apply, the memorandum was held insufficient." So, in Wood on Statute of Frauds, § 353, it is...