Miller v. Dargan

• Decision Date: 04 November 1918
• Docket Number: 213
• Citation: 206 S.W. 319,136 Ark. 237
• Parties: MILLER v. DARGAN
• Court: Arkansas Supreme Court

206 S.W. 319

136 Ark. 237

MILLER v. DARGAN

No. 213

Supreme Court of Arkansas

November 4, 1918

Appeal from Mississippi Chancery Court, Osceola District; Archer Wheatley, Chancellor; affirmed.

Decree affirmed.

Virgil Green and Hughes & Hughes, for appellant.

1. There is no written agreement to convey the lands. The contract is within the statute of frauds. Kirby & Castle's Digest, § 3982. It does not contain a description of the property to be conveyed. Browne, Stat Frauds (5 Ed.) § 385; 85 Ark. 1; note to 11 L.R.A. 98; 72 Ark. 496. No effort here is made to describe the property. No lands are identified by the description. The bad description is accentuated by the circumstance that the oral evidence shows that forty acres were to be omitted; which forty is not shown. The parties differ. The description is vague and uncertain so that specific performance cannot be decreed.

2. Defendants prepared and signed a deed, but it was retained and never acknowledged or delivered. No memorandum in writing is sufficient to take the case out of the statute unless delivered to the obligee. Browne, Stat. Frauds, § 354 b 1 Devlin on Real Estate, 421; 16 Minn. 172; 81 Ind. 192; 48 Iowa 99; 67 Mass. 410; 158 Id. 113; 31 Miss. 17; 43 N.Y. 550; 116 Pa.St. 329; 57 A. 81; 24 Neb. 83; 26 N.J.Eq 316; 76 Hun (N. Y.) 419; 108 Tenn. 398; 102 Ark. 377; 16 Minn. 172.

3. The abstracts could not cure a defective description. They were not a part of the transaction, but were memoranda of title prepared by some third party. Extrinsic documents cannot be resorted to in aid of a defective description, unless the contract refers to them for the description. 29 R. I. 230; 18 L.R.A. (N. S.) 616 note; 144 Mass. 465. The abstracts were delivered in pursuance of the contract, but were not part thereof. The contract calls for abstracts, but it is not possible otherwise than by parol evidence to show that these are the abstracts furnished in pursuance of the contract. The documents on their face do not appear to be connected with each other. The connection must appear upon the face of the papers. Browne on Stat. Frauds, § 348, 30 Minn. 389; 122 Ind. 574; 123 Pa. 298.

4. The difficulty because of non-compliance with the statute of frauds is recognized in the amended complaint. It prays reformation as to the description. No mistake is alleged, and there is no explanation. The mistake, if any, must be alleged. 123 Ark. 451. The oral evidence leaves the true description in doubt. There is uncertainty and the proof must be clear and decisive. 71 Ark. 614; 126 Id. 251. While executed contracts may be reformed and enforced executory contracts within the statute of frauds will not be. 2 Wh. & Tudor Lead Cas. in Eq. 920; 102 Mass. 24; 89 A. 533; 92 Id. 96; L.R.A. 1917 A 563 and note 536; L.R.A. 1917 A 596; 15 Mich. 18; 25 Am. Dec. 205; 5 L.R.A. 810; 48 Am. Dec. 133; 23 L.R.A. (N. S.) 1197; 123 Wis. 510; 39 F. 353; 41 Ark. 495; 17 A. 910; 33 N.E. 434; 120 N.Y.S. 486; 2 McCord Eq. 112; 234 Pa. 100; 83 A. 54. See also 16 Idaho 133; 100 P. 1052; L.R.A. 1917 A 563; 10 Me. 80; 15 Mich. 18; 106 Id. 143; 104 N.C. 16; 5 L.R.A. 810; 85 Ark. 1; 41 Id. 495; 19 Conn. 63; 48 Am. Dec. 133, etc.

Lamb & Rhodes, for appellee.

1. The land is not specifically described in the contract. But this is cured by the action of the parties in submitting the abstracts of title to the particular lands described in the complaint, and no contention is made that that was not the land described as the plantation on Carson Lake. The amendment to the complaint alleges that this is the actual land. The description is sufficient. 68 Ark. 547; 30 Id. 548; 85 Ark. 1-4; 123 Ga. 415; 103 Ark. 550; 78 Id. 158; 91 Id. 468. There can be no dispute as to the land agreed upon. 85 Ark. 1; 80 Id. 209; 79 Id. 203; 95 U.S. 200. The contract furnishes the key, and when the abstracts were delivered the contract was complete, definite and certain. 80 Ark. 209; 79 Id. 203; 95 U.S. 200. There was no disagreement as to what land was sold. Appellants owned no other lands than the plantation on Carson Lake.

2. The contract was not within the statute of frauds. All defects were cured by the abstracts and testimony. The proof is clear and decisive. Bishop on Contracts, § 708; 85 Ark. 442. See also 3 N.J.Eq. 60; 53 Id. 588; L.R.A. 1917 A 563.

3. All executory contracts may be reformed and enforced specifically. 19 W.Va. 240; 42 Minn. 440; 7 Ga. 38; 137 Iowa 378; 163 Ky. 729; 22 S.D. 293; 45 Cal. 78; L.R.A. 1917 A 591; 96 Am. Dec. 671; 34 Am. St. 134; 23 Ark. 422; 85 Id. 1-4; 2 Pom. Eq. Rem., § 677.

4. The lands were sufficiently described. 12 Fla. 348. They were identified and made certain. 18 Mich. 367; 41 Wis. 223; 164 F. 107. Where the contract is ambiguous the court will follow the interpretation placed on it by the parties and carry out their intention. 83 Neb. 441; 131 Am. St. 629; 48 Mo. 325; 81 Am. Rep. 104; 6 Cr. 237; 3 Greenleaf 393; 3 Elliott on Cont., § 2293; 15 Johns 471; Beach Mod. Eq. Jur., §§ 581-2-3; 1 Pom. Eq. Jur., §§ 365-7-8; 4 Id. § 1334.

5. Defendants breached their contract, and no tender was required until they complied with their contract to furnish an abstract. 88 Ark. 472; 93 Id. 472; 43 Id. 184; 102 Id. 152; 38 Id. 174. See also 93 Id. 195.

6. All the papers connected with the transaction must be construed together. 121 Am. St. 357-9; 139 U.S. 210; 22 Oh. St. 62; 20 So. 123; 29 A. & E. Enc. 850-1.

7. The case was taken out of the statute of frauds. 30 Ark. 250; 69 Id. 513; 52 Id. 207; 48 Id. 535; 141 P. 800; 20 Cyc. 308. The contract was fully complied with by appellee.

OPINION

MCCULLOCH, C. J.

This is an action instituted in the chancery court of Mississippi County to compel specific performance of a contract to sell and convey real estate. The defendants owned the lands in controversy, which constituted a plantation on Carson Lake in Mississippi County, and there is in the complaint an accurate description of the several tracts according to the plats of the government surveys. Defendants listed the lands with certain real estate brokers for sale, and the latter negotiated a sale to the plaintiff at the price of $ 110 per acre. There were 561 1/2 acres in the whole tract, but it appears from the testimony in the present case that there was a certain tract containing 40 acres that was to be excluded from the sale. The parties entered into a written contract specifying the terms of sale, and the clause of the contract containing the description of the lands to be sold reads as follows:

"That the parties of the first part have sold, and do hereby agree and bind themselves to convey, to the said Dargan their plantation located on Carson Lake in the Osceola District of Mississippi County, Arkansas, containing 520 acres, more or less, the actual amount to be determined by survey at the expense of the said Dargan upon the terms and conditions herein stated."

The date of the written contract was August 13, 1917, and it was further provided therein that the purchaser should pay $ 1,000 as the initial payment upon the execution of the contract, and should also pay the sum of $ 5,000 on or before noon of October 20, 1917, whereupon the vendors were to execute a deed conveying the lands to the purchaser, and notes evidencing the deferred payments were also to be executed by the purchaser. There was also a stipulation that the vendors were to furnish an abstract of title.

It appears from the evidence that the plaintiff made the initial payment of $ 1,000 at the time of the execution of the contract, and that a short time thereafter the defendants furnished the plaintiff's attorney an abstract of title. Certain defects were pointed out in the title to some of the tracts, and suggestions were made by plaintiff's attorney as to how those defects might be cured. The abstract of title thus furnished did not embrace a certain forty-acre tract which the defendants owned, but which the plaintiff now contends is the tract which was not to be included in the sale. The testimony adduced by plaintiff tends to show that just prior to October 20 plaintiff was preparing to have the land surveyed pursuant to the contract for the purpose of ascertaining the exact acreage, and his attorney went to the defendants to ascertain whether or not the title had been perfected in accordance with his suggestion. The attorney offered to make the payment of $ 5,000 for the plaintiff, but one of the defendants with whom he was negotiating instructed him to place the money in bank so as to be ready to pay over when the defects in the title were cured. The testimony also shows that there was an actual tender of the sum of $ 5,000 before October 20, but that defendants refused to accept it and repudiated the contract.

There was no controversy between the parties at that time as to what particular tract of forty acres should be omitted from the sale, but defendants based their refusal to execute the deed on the ground that the plaintiff had not executed and tendered his notes for the deferred payments with a mortgage to secure the same. The testimony of the defendants is to the effect that there was no agreement for the postponement of the date for the consummation of sale, and that they perfected the defects in the title, but that the plaintiff was not ready to comply with the contract on or before October 20, 1917, as specified in the contract. There is a sharp conflict in the testimony as to whether or not the plaintiff made a tender of performance within the time and whether or not there was an agreement to postpone the date until certain defects were cured, but we are of the opinion that the finding of the chancellor on those issues is not against the preponderance of the testimony. If as the testimony of the...