Maris v. Masters

• Decision Date: 26 May 1903
• Docket Number: 4,330
• Citation: 67 N.E. 699,31 Ind.App. 235
• Parties: MARIS v. MASTERS
• Court: Indiana Appellate Court

67 N.E. 699

31 Ind.App. 235

MARIS v. MASTERS

No. 4,330

Court of Appeals of Indiana

May 26, 1903

From Marion Circuit Court; H. C. Allen, Judge.

Suit by Lillian L. Masters against James D. Maris for the specific performance of a contract to convey real estate. From a judgment for plaintiff, defendant appeals.

Affirmed.

R. O Hawkins and H. E. Smith, for appellant.

H. L Hutson, for appellee.

OPINION

COMSTOCK, P. J.

The complaint alleges that on March 15, 1899, the plaintiff and defendant entered into an agreement whereby plaintiff purchased from defendant a certain piece of realty therein described; that, by the terms of purchase, plaintiff was to pay therefor $ 900, as follows: (1) Four hundred dollars, in payments, between March 15, 1899, and July 1, 1899; and (2) by the assumption of a certain mortgage thereon. It is alleged that plaintiff agreed with defendant that, when said sum of $ 400 was paid, he would convey said realty to plaintiff by good and sufficient warranty deed, subject only to said mortgage. It is then charged that defendant reduced said contract to writing, and delivered the same to plaintiff, properly signed by him, and a copy of the so-called written agreement is filed with the complaint and made a part thereof. It is further alleged that she complied with all the terms of the agreement on her part, and that she paid the money in payments, except $ 30; that on August 8, 1899, she tendered the sum of $ 30, with twenty-five cents interest, to the defendant, and demanded of him a good and sufficient deed of general warranty, and that the defendant failed and refused to convey the said realty to her according to the terms of the agreement, and that she now brings said money into court for the use and benefit of defendant, and prays for a decree requiring defendant to comply with his agreement; that he be required to execute to her a good and sufficient deed of general warranty for said realty, and, failing, that he be held in contempt of court, and that she have damages for such sum as the court shall determine to be good and equitable. In brief, the action is one for specific performance of an alleged written contract to convey realty. Appellant's demurrer for want of facts was overruled. He then filed an answer in five paragraphs, the first being a general denial. The cause was put at issue, and a trial by the court resulted in a judgment and decree: (a) That plaintiff pay the clerk of the court, for the defendant, $ 33.15, within one day, to be paid to defendant when he has fully complied with this order; (b) that defendant Maris, within thirty days from this date, execute and deliver to plaintiff a good and sufficient warranty deed, signed by said defendant James D. Maris and his wife, conveying the realty thereafter described, subject only to the mortgage for $ 500, described, with interest; (c) that if defendant fails or refuses to deliver a deed, as above described, plaintiff recover damages in the sum of $ 400, and that she have return of the money paid by her into court; (d) that plaintiff recover costs.

The errors assigned are: (1) The overruling of the demurrer to the complaint; (2) the sustaining of the demurrer to the second paragraph of answer; (3) the overruling of the motion to correct and modify the judgment and decree; and (4) the overruling of the motion for a new trial.

The first objection urged to the complaint is that the contract is void for uncertainty of description. It is urged that the averments of the complaint are broader than the agreement, and "when the allegations of a pleading vary from the provisions of the instrument upon which it is founded, the provisions of such instrument control, and such allegations will be disregarded." Appellee admits that, where the variance claimed exists, the exhibit will control, but insists that the variance claimed does not exist. Harrison Bldg., etc., Co. v. Lackey, 149 Ind. 10, 48 N.E. 254. The statute of frauds (§ 6629 Burns 1901, § 4904 Horner 1901) provides: "No action shall be brought in any of the following cases: * * * (4) Upon any contract for the sale of lands * * * unless the promise, contract or agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or by some person thereunto by him lawfully authorized; excepting, however, leases not exceeding the term of three years."

An agreement for the sale of lands which contains no sufficient description of the property is void for uncertainty, and can not be enforced. The complaint alleges a contract between the plaintiff and the defendant for the purchase "of the following described real estate in Marion county, Indiana, to wit: Lot number thirty, Douglas Park, an addition to the city of Indianapolis." The words of description in the exhibit are "Lot 30, Douglas Park," at the end of the receipt, before the name of J. D. Maris. The agreement which is made a part of the complaint is in the following language: "Indianapolis, Ind., March 15, 1899. M To J. D. Maris, Dr., Builder. Plans drawn. Estimates furnished. All kinds of repair work. 1339 North Alabama Street.

"Received of L. L. Masters, $ 100 on account of lot 30, Douglas Park. J. D. Maris.

"Fifty dollars to be paid to J. D. Maris on or before April 1, 1899, $ 50 on or before May 1, 1899, $ 100 on or before June 1, 1899, and $ 100 on or before July 1, 1899. When the said L. L. Masters shall have paid all the above sums to J. D. Maris, then the said James D. Maris, is to make said L. L. Masters a warranty deed for the same. Said L. L. Masters to assume one $ 500 mortgage note given to the trustees of Philoxenia lodge, No. 44, due on or before March 14, 1900, with interest at six per cent. per annum. [Signed] J. D. Maris."

In determining whether the description is sufficiently certain, we must bear in mind that the office of a description in a deed is not to identify the land, but it is to furnish the means of identification. The part of the deed describing the premises conveyed is to be construed with the utmost liberality. Rucker v. Steelman, 73 Ind. 396, and cases cited: Singer v. Scheible, 109 Ind. 575, 10 N.E. 616, and cases cited at page 583; Frick v. Godare, 144 Ind. 170, 42 N.E. 1015.

The writing bears date at Indianapolis, Indiana. This may indicate that the lot was situate in said city. In Mead v. Parker, 115 Mass. 413, it was held to be "an inference of fact, though not conclusive," that the land is situate in a certain place, owing to the fact that the written contract to convey is dated at that place. Riley v. Hodgkins, 57 N.J. Eq. 278, 41 A. 1099, was a suit for the specific performance of an alleged agreement to convey certain lots in Jersey City. One objection to the complaint was that the description in the contract was too vague and indefinite to be enforced. The alleged contract of sale was dated at Jersey City. The court said: "It may well be argued, however, that, in naming a place in the memorandum, the maker of it considered himself as speaking from that locality, not only to indicate the place where he was given a receipt for the purchase price, but also as covering the interior specifications, by number of lot, block, and streets of the location of the lands agreed to be sold." See, also, Price v. McKay, 53 N.J. Eq. 588, 32 A. 130. For the purpose of determining the sufficiency of the complaint the presumption is that the lot in question is located where the agreement is dated. We then have to assist in the identification of the real estate involved, the fact that it is lot thirty, Douglas Park, Indianapolis, Ind. If there is such an addition to Indianapolis, the identification of the lot will follow.

Appellant cites Wilstach v. Heyd, 122 Ind. 574, 23 N.E. 963, as strongly supporting the demurrer. It was a suit for damages for the alleged breach of a contract for the sale of a lot. The complaint averred that, in consideration of $ 2,560 to be paid by the plaintiff to the defendants, defendants sold, and agreed to convey upon demand, certain real estate owned by the defendants, and situate in the city of New Albany, Floyd county, Indiana, described as follows: "Lot number fourteen on Ekin avenue, in the city of New Albany." The only description in the memorandum was, "The lot number fourteen, Ekin avenue," which was indorsed on the reverse side of the paper from that upon which the other parts of said written memorandum appears. The court held that if such indorsement could be construed to be a part of the memorandum, it was uncertain, and could not be enforced without the aid of parol proof to identify the lot, and sustained a demurrer to the complaint. The receipt signed by the defendants was dated at New Albany. There is an uncertainty found in the last description not in the case at bar. "Lot fourteen on Ekin avenue," New Albany. The court can not say how many additions there may be adjacent to Ekin avenue, nor how many lots numbered fourteen. This agreement was also defective in other particulars apart from the description of the land. Such description is as indefinite as lot fourteen on Washington street, Indianapolis. It will not be presumed that there is more than one lot number thirty in Douglas Park.

It may fairly be inferred also that the vendor is the owner of the property, and the exact terms of the agreement are stated. Tewksbury v. Howard, 138 Ind. 103, 37 N.E 355, was an action to enforce specific performance. In the course of the opinion the court say: "The rule often recognized in this State is, that where the description given is consistent, but incomplete, and its completion does not require the contradiction or alteration of that given, nor that a new description ...