Lebow v. Weiner, 7114

• Decision Date: 12 March 1970
• Docket Number: No. 7114,7114
• Citation: 454 S.W.2d 869
• Parties: Joseph LEBOW, Appellant, v. Stanford A. WEINER, Appellee.
• Court: Texas Court of Appeals

Page 869

454 S.W.2d 869

Joseph LEBOW, Appellant, v. Stanford A. WEINER, Appellee.

No. 7114.

Court of Civil Appeals of Texas,

Beaumont.

March 12, 1970.

Rehearing Denied April 9, 1970.

Dow, Cogburn & Friedman, Houston, for appellant.

McLeod, Alexander, Powel & Apffel, Galveston, for appellee.

KEITH, Justice.

Weiner, as plaintiff, sued LeBow to enforce specific performance of an alleged contract to convey land in Galveston County. The jury verdict was favorable to Weiner and LeBow appeals. The parties will be designated by their respective surnames in this opinion. In a prior appeal involving venue (LeBow v. Weiner, 420 S.W.2d 755 (Houston 14th, Tex.Civ.App., 1967, no writ)), Judge Tunks held that the two-page instrument forming the basis of the present suit was a binding and enforceable contract between the parties. Rather than repeat all of the circumstances surrounding the making and delivery of the instrument, we refer to pages 757 and 758 of the reported opinion for an account thereof.

LeBow, in his first point, raises the defense of the Statute of Frauds. This defense, although urged in the venue appeal, was found 'not available' to him in that posture of the case. (420 S.W.2d at p. 759)

The printed form used as the first page of the earnest money contract and the layman's language used in the addenda, ¹ makes it necessary to separate the three elements which the parties had under consideration: the area sold, the consideration, and the description. We separate these elements:

1. Description: '* * * out of Lot 534, Section 1, Trimble & Lindsey Survey, Galveston County, Texas, standing in the name of JOSEPH LEBOW; * * * to be specifically identified by survey * * * by licensed Engineer-Surveyor; * * * to be that part (of LeBow's land) adjacent to and West of a tract of land owned by Joseph Swiff, * * * * * * the frontage to said land shall not be less than ONE HUNDRED FIFTY (150ft.) feet, along the Feeder Road, * * *.

'* * * the 'West' boundary line shall be parallel with the 'East' Boundary line, * * *.'

2. Area of land sold: 'One (1) acre (mentioned in the first line of the description). * * *

'* * * the frontage to said ² land shall not be less than * * *

'* * * in the event that the the (sic) total square footage within the survey exceeds one (1) acre, or (is) less than one acre (1) then the total price will be pro rated; * * *'

3. Price of the land: 'TOTAL PRICE $20,000.00 Per acre ³ to be paid by PURCHASER as follows: * * *.

'This sale is based upon a price of $20,000.00 per acre, * * * in the event that the the (sic) total square footage within the survey exceeds one (1) acre, or (is) less than one acre (1) then the total price will be pro rated; * * * and the note representing balance (of) principal will be adjusted accordingly.'

Without doing harm to the sense of the instrument, we recast the language to read as follows:

'* * * SELLER agrees to sell, upon the terms and conditions herein, the following described real estate, * * * in Galveston, Galveston County, Texas: One (1) acre of land out of Lot 534, Section 1, Trimble & Lindsey Survey, Galveston County, Texas, standing in the name of JOSEPH LEBOW; said acre of land to be specifically identified by survey * * * by Licensed Engineer-Surveyor; said acre of land to be that part (of LeBow's land) adjacent to and West of a Tract of land owned by Joseph Swiff, * * * the frontage to said land (contracted to be sold) shall not be less than ONE HUNDRED FIFTY (150 ft.) feet, along the Feeder Road * * * (and) the 'West' boundary line shall be parallel with the 'East' Boundary line.

'(The) TOTAL price is $20,000.00 per acre; * * * this sale (being) based upon a price of $20,000.00 per acre, * * * (and) in the event that the the (sic) total square footage within the survey (to be made) exceeds one (1) acre, or (is) less than one acre (1) then the total price will be pro rated; * * * and the note representing balance (of) principal will be adjusted accordingly.' (Bracketed matter inserted.)

Location of Land by Court

The survey as made located the tract with a minimum of 150 feet frontage upon the feeder road, the east line was common to the Joseph Swiff tract with the west line parallel thereto, the land was situated in Lot 534, Section 1, Trimble & Lindsey Survey, Galveston County, Texas, standing in the name of Joseph LeBow. But the tract contained only nine-tenths (0.9) acre and the court prorated the cost upon acreage, $18,000.00 for the area within the description.

LeBow, invoking the Statute of Frauds (Article 3995, § 4, Vernon's Ann.Civ.St.), contends that the description contained in the two-page contract is insufficient in law and in fact. He points up his contention in this language found in his brief:

'In order to conjure from this (the description found in the contract) the tract shown on Plaintiff's Exhibit No. 3 (upon which the judgment is based) one must (a) completely disregard the language 'not less than' and arbitrarily assume that the frontage is to be Exactly one hundred fifty (150) feet on the feeder, no more and no less, and (b) assume that 'adjacent to and West of' means that the tract conveyed is to have a common boundary with the Swiff tract all the way back to the Houston Lighting and Power Company property in the rear.'

In Broaddus v. Grout, 152 Tex. 398, 258 S.W.2d 308, 309 (1953), the court expressed the rule in this language:

'The established test in determining the sufficiency, for compliance with the statute of conveyances and the statute of frauds, of the description of land in deeds and in contracts to convey land is thus stated in Wilson v. Fisher, 144 Tex. 53, 56--57, 188 S.W.2d 150, 152: 'the writing must furnish Within itself, or by reference to some other existing writing, The means or data by which the particular land to be conveyed may be identified with reasonable certainty.' (Emphasis added.) * * * (citing cases).'

In essence, this is the 'nucleus of description' theory enunciated by the Commission of Appeals in Continental Supply Co. v. Missouri, K. & T. Ry. Co., 268 S.W. 444, 446 (Tex.Com.App., 1925):

'Where the land is a part of the larger tract, the deed conveying the included tract or the judgment, they levy, or the probate proceedings offered in evidence, and to which the court may legally look, must contain a general description of the land embraced in the larger tract, in addition to the description of the inclosing tract--a starting point, a datum, referring to the included tract from which it may be traced by extrinsic facts to its location and be found. The general description may be only the name of the owner, a designated person's interest in the larger tract, or some such fact. But there must be a nucleus of description of the inclosed tract, around which extrinsic facts may be gathered from oral evidence such as locate the land. There must be something in the description to which oral evidence may be tied. Without such datum to begin with, proof of extrinsic facts is inadmissible. In the absence of such general though inaccurate description of the inclosed tract, to permit oral proof of location would be to pass the title to land by parol in violation of the statute.'

Or, as the rule was put in Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980, 982 (1948):

'The rule is well established that for a contract to convey land to be sufficient under the statute of frauds, art. 3995, R.C.S., 'the description must be so definite and certain upon the face of the instrument itself, or in some other writing referred to, that the land can be identified with reasonable certainty.' Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848, 849; * * * (other citations omitted).'

But, as was said in Gates v. Asher, 154 Tex. 538, 280 S.W.2d 247, 249 (1955):

'A reasonable certainty is all that the law requires. Conviction beyond all peradventure of doubt is unnecessary. Mansel v. Castles, 93 Tex. 414, 55 S.W. 559, 560. In that case the court supplied by construction an entire call missing from the deed and held in part as follows:

"While, therefore, the proposition that the calls of the description in question correct themselves, and show the land intended to be described, is not capable of mathematical demonstration, yet that it is true is reasonably certain. Upon such certainty we act in all the highest concerns of life, and it is sufficient for the purposes of the law."

See also, Kansas University Endowment Ass'n v. King, 162 Tex. 599, 350 S.W.2d 11, 17 (1961).

LeBow has pointed out his primary objections to the description: the phrase 'not less than 150 feet frontage' must be 'exactly' that number of feet and adjacent to and West of' the Swiff Tract requires a common boundary between the two tracts. We do not have a case of 'more or less' in a description of either acreage or the length of the call nor do we have an attempt to locate the easterly boundary at a place other than 'adjacent to and West of' the Swiff Tract. The precise minimum number of frontage feet were allocated to the purchaser and the easterly line was not only 'adjacent to and West of' the Swiff Tract, it was common thereto. The word 'adjacent' is defined in The American Heritage Dictionary (1969) as 'close to; next to; lying near; adjoining.' ⁴ The line chosen by the surveyor fitted each of these requirements. The meaning of the word 'adjacent' as construed in municipal annexation suits ⁵ is not necessarily controlling in this situation where we are attempting to ascertain the intent of the parties as expressed in their writing.

The only claimed ambiguity seized upon by LeBow's resourceful counsel is the requirement that the frontage of the tract involved must be not less than 150 feet upon the feeder road. This was a stated minimum, and that is what the court awarded to the purchaser. The minimum frontage question presented is not similar to the 'more or less' question discussed by Chief Justice Calvert in Bickler v. Bickler, 403 S.W.2d...