Jones v. Hickson
| Decision Date | 22 November 1948 |
| Docket Number | 36873. |
| Court | Mississippi Supreme Court |
| Parties | JONES v. HICKSON. |
Ellis B. Cooper and M. W. Boyd, both of Laurel for appellant.
M. J. Peterson, of Laurel, and T. W. Davis, Jr. of Hattiesburg, for appellee.
The appellee filed his original bill in the Chancery Court of the Second Judicial District of Jones County, praying that appellant be required specifically to perform the following contract to convey land, viz.:
The original bill charged full compliance by appellee with the requirements of the agreement, and was accompanied by payment into court of the full amount of the balance of the purchase money. It also averred that, although requested to do so, appellant had refused to make the conveyance as he was obligated to do. The bill also stated that appellant had never called on H. H. Mitchell to prepare the deed, Mr. Mitchell being the usual and customary scrivener of deeds in the community.
Appellant answered, which was made a cross-bill, and which also contained a general demurrer on the grounds that
This demurrer was overruled, and an interlocutory appeal was granted to settle all the general controlling principles of the cause, and to save expense and delay. We have retained the appeal because of some apparent confusion in the opinions of the court, and because expense and delay will be avoided by decision of the issue on this appeal. The overruling of the demurrer is the only assignment of error, and forms the only question before us.
The arguments of appellant, which we deem worthy of notice, are two: (1) That the term 'Old Satcher Place' is an insufficient description to meet the requirements of the statute of frauds; (2) and that appellee must fail in his prayer for a warranty deed, at all events, since the agreement contains no express agreement therefor.
The applicable part of the statute of frauds provides that no action shall be brought whereby to charge a defendant or other party 'upon any contract for the sale of lands, tenements, or hereditaments, * * * unless * * * the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing.' Code 1942, Section 264.
The only description of the land agreed to be conveyed is '120 acres of land the Old Satcher Place,' without giving the district, county and state, which, appellant contends makes the agreement void and unforceable. The appellee, on the other hand, takes the position that extrinsic evidence is competent to delineate the boundaries and location of the 'Old Satcher Place.' The chancellor, as stated supra, agreed with appellee, and overruled the demurrer.
Appellant cites the recent case of Culpepper v. Chain, Miss., 32 So.2d 266, not yet reported in State Reports, which involved a receipt for money with reference to the sale and purchase of land, and which was sought to be made operative as a deed. The effect of the opinion was a denial that extrinsic evidence could be adduced for that purpose. The case was correctly decided, but is not in point on the entirely different issue in the case at bar.
Our attention is also called to the case of Paine v. Mikell, 187 Miss. 125, 192 So. 15, 16, where the Supreme Court held that a receipt for a down payment on purchase price of lots was insufficient under the statute of frauds as a memorandum of contract of sale, in the absence of statement therein as to the county and state in which the lots were located or of indication that it was made on behalf of the owner of the lots. However, the opinion of the Court there indicated the difference between that case and the instant case, where it said: 'The appeal was perfected within the time required by law after the date of the final decree awarding the damages aforesaid, and so as to entitle the appellant to have the question determined by this court as to whether or not the original decree was properly rendered against her upon the bill of complaint, decree pro confesso and proof offered at the original hearing * * *.' The Court said further that: 'It is contended, however, that since the appellant did not appear and plead the statute, Section 3343, supra, the point cannot be raised here on appeal.' It will be noted here that no effort to offer extrinsic evidence of the state and county appears to have been made in the trial court, for the purpose of making the location of the lots more certain as to state and county, and hence the case is not in conflict with the conclusion we have reached in the instant case.
In the case at bar, the original bill, by proper averment, defines the 120 acres comprising the Old Satcher Place by metes and bounds, and locates it in the Second Judicial District of Jones County, Mississippi. As pointed out with reference to the case just cited, there was no proof offered as to the situs of the land in any state and county, whereas here, no doubt evidence will be offered to show the district, state and county, on remand, and it will be competent, since '120 acres of land the Old Satcher Place' furnishes sufficient other means of identification as a basis of clarification of the description, if the Old Satcher Place be proven to be where the petition avers it is located.
Appellant further relies on the case of Taylor et al v. Sayle et al., 163 Miss. 822, 142 So. 3, involving the enforcement of the sale of 'real property known as Turkey Creek Place situated in Yalobusha County, Mississippi, and containing approximately 1430 acres of land together with all improvements thereon.' A careful reading of the opinion, we think, will demonstrate that it supports the position of appellee here, rather than that of the appellant.
The memorandum of sale was held insufficient where the real property was described as 'on the south side of the town of Darling, to be measured later.' This holding was of course correct, but the case is not helpful here. At any rate, the lots turned out to be on the east side of Darling. Nickerson v. Fithian Land Co., et al, 118 Miss. 722, 80 So. 1.
We do not deem the case of Kervin v. Biglane, 144 Miss. 666, 110 So. 232, cited by appellant, to be conclusive here, because the Court there was unable to determine whether the memorandum dealt with a sale or a lease, and there was a variance between the land sought in the original bill and that described in the memorandum. However, it was held that the contract must show in some manner whether it is a contract to sell or not, and also whether a warranty or a quitclaim deed was to be executed. But apparently only an option was at issue there, while here the memorandum specifically provides for a deed. We deal further with this question later herein.
In a case wherein this Court said of the agreement that it was 'for a house and lot, without designating the same, or referring to anything by which they could be ascertained' (italics supplied), it was declared that 'Oral evidence is inadmissible for the purpose of supplying an omission in an instrument where written evidence is required by law.' But it was at the same time announced that: 'Every agreement which is required by the statute of frauds must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision, otherwise it cannot be carried into effect.' McGuire v. Stevens, 42 Miss. 724, 2 Am.Rep. 649.
In a suit to enforce performance of a contract describing the subject matter as 'a piece of property on the corner of Main and Pearl Streets, City of Natchez,' relief was denied because 'the receipt refers to no extrinsic fact by which it could be ascertained on which corner of Main and Pearl Streets the land in controversy is situated.' For that reason, it was held that extrinsic parol evidence was incompetent. Holmes v. Evans and Monahan, 48 Miss. 247, 12 Am.Rep. 372.
Referring to facts de hors the writing, as far back in our jurisprudence as Smedes & M. Ch. 338, at page 342, in the case of Jenkins v. Bodley, the Court held that if the written instrument contained sufficient facts to point out the locality of the lot involved, 'and to supply by inquiry, information as to the exact boundary of the lot, then the description must be held sufficient in equity, to protect the grantee in the deed against any subsequent purchaser.'
This Court has definitely laid down the general rule in the case of Raines v. Baird, 84 Miss. 807, 37 So. 458, where the property was described simply as 'that tract of land adjoining section Nine, and known as the Phil Allen place containing eighty acres more or less.' Specific performance was granted. The opinion quoted from Kyle v. Rhodes, 71 Miss. 487, 491, 15 So. 40: ...
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