Minge v. Green

• Decision Date: 11 April 1912
• Citation: Minge v. Green, 176 Ala. 343, 58 So. 381 (Ala. 1912)
• Parties: MINGE v. GREEN.
• Court: Alabama Supreme Court

58 So. 381

176 Ala. 343

MINGE v. GREEN.

Supreme Court of Alabama

April 11, 1912

Appeal from City Court of Birmingham; H. A. Sharpe, Judge.

Bill for specific performance by John H. Minge against P. B Green. From a decree for respondent on demurrer, plaintiff appeals. Reversed and rendered.

Mayfield and Anderson, JJ., dissenting.

London & Fitts, of Birmingham, for appellant.

Sepsalon & Davis and H. U. Sims, all of Birmingham, for appellee.

SOMERVILLE J.

The bill was filed to compel specific performance of a contract for the sale or exchange of real estate.

The terms of the contract as to which relief is sought, as exhibited by the bill of complaint, are found in a written memorandum constituting respondent's offer to complainant, and in a letter from complainant to respondent accepting the memorandum offer.

The memorandum and letter are as follows:

"Birmingham Ala., May 28, 1911. Received of P. R. Green one and no/100 dollars as earnest money and part purchase price of property described, to wit: House and lot No. 3019 Ave. G. subject to one mortgage of $1800.00. 4 houses and two lots 50X190 each W. 1/2 lot 21 and E. 1/2 lot 22 'Belleview,' subject to one mortgage of $2600.00, house and lot on 21st Ave. North, between 25th and 26th streets, and known as U. J. Brown's home, subject to one mortgage of $1600. Also lots 27 and 28, block 15 Rosemont, subject to title contract of $200. Mortgage of $2000 on farm to be conveyed by Green, same to be due in 3 years on or before with interest from date at 8 per cent. this day sold to said Dr. P. B. Green (or assigns) for the price and sum of $10,000; on the following terms: $1.00 cash, balance and deed to 400-acre farm about two miles from Batelle (a station) on the A. G. S. R. R. The buyer, Dr. P. B. Green, agrees to pay Ben F. Eborn & Harrington one thousand ($1,000.00) dollars as commission for sale of his farm in this deal, with _______ per cent. interest, deferred payments to be secured by _______. Will pay taxes for the current year and furnish abstract of title to date. Title to be good and merchantable or contract void and earnest money to be refunded. Sale to be complied with thirty (30) days from date. This contract subject to approval of owner. Dr. P. B. Green."

"Dr. P. B. Green, City--Dear Sir: I have just returned from a trip to De Kalb county, where I went to examine your place, about two miles out from Batelle. This letter is to notify you that I do hereby approve the contract made with you on May 27th, 1911, and I am ready to close the deal with you in accordance with our contract of the above date. I will prepare the deed for the property you purchased from me, and will be able to deliver it to you along with abstract of title in a few days. In the meantime please furnish me with abstract of title on your 400 acres of land. Trusting that you will give this your prompt attention, I am, very truly yours, Jno. H. Minge."

The prayer is that respondent be required to convey to complainant the 400-acre farm as specified, free from all incumbrances; or, if a release of the dower right cannot be procured, that conveyance be made subject to that right, with an equitable abatement of the purchase price to the extent of the value of such incumbrance.

Respondent demurred to the bill on substantially the following grounds: (1) There is no equity in the bill; (2) it is multifarious; (3) a necessary party is omitted; (4) the terms of the contract are too vague and uncertain to permit of enforcement; (5) it improperly seeks to explain and enlarge a complete writing by parol evidence; and (6) it shows that the contract is to be void unless the title to be conveyed by respondent is good and merchantable, and yet shows an inchoate dower interest is outstanding.

The chancellor sustained the demurrer as a whole, and the appeal is from that decree.

It is evident that the bill is not multifarious. The prayer is simply for specific performance, and the proposed abatement of the purchase price as compensation for the incumbrance of the land by an outstanding inchoate dower right, in case of its nonremoval, is a matter merely of detail in the adjustment of the relief if granted. It is evident, also, that, as respondent is the only party to the agreement to convey, he is the only proper party to a proceeding for its enforcement.

The chief contentions insisted upon are (1) that the terms of the contract exhibited are too uncertain to permit of specific enforcement, and cannot be aided by parol evidence; and (2) that, in any case, there being shown an outstanding incumbrance, the agreement by its own terms is rendered void and unenforceable.

The property undertaken to be conveyed by respondent, with a "good and merchantable" title, is described as a "400-acre farm about two miles from Batelle (a station) on the A. G. S. R. R.," and is also referred to as "his [i. e., P. B. Green's] farm." In complainant's letter of acceptance he says: "I have just returned from a trip to De Kalb county, where I went to examine your place, about two miles out from Batelle." The bill of complaint avers that at the time this memorandum of the contract was signed by respondent he "owned one 400-acre farm about two miles from Batelle, a station on the Alabama Great Southern Railroad, which was the only 400-acre farm owned by said defendant anywhere, and the only farm of any size owned by the defendant in the vicinity of said station. Said farm is situated in De Kalb county, Ala." That the memorandum description of this farm may be of uncertain application is, of course, apparent. The ambiguity is, however, a latent one, and the description may be made certain in its application to the subject-matter intended by the aid of evidence dehors the writing. "Id certum est quod reddi potest," is a maxim which has been frequently and liberally applied by this court for the upholding of imperfect descriptions of this character. The intent here was to sell a certain 400-acre farm. It is identified by reference thereto as belonging to the vendor, and as being located about two miles from a designated railroad station. If there is such a farm owned by the vendor, and if he owns but one such farm, and the bill avers these facts, the application of the given description to the subject-matter intended is freed from all uncertainty, and involves no difficulty whatever. Indeed, the sufficiency of a description of such a character as this has been so often affirmed by this court as to be no longer open to discussion. Ellis v. Burden, 1 Ala. 458; Baucum v. George, 65 Ala. 259; Meyer v. Mitchell, 75 Ala. 475; Angel v. Simpson, 85 Ala. 53, 3 So. 758; Homan v. Stewart, 103 Ala. 644, 16 So. 35; Cottingham v. Hill, 119 Ala. 356, 24 So. 552, 72 Am. St. Rep. 923; Greene v. Dickson, 119 Ala. 346, 24 So. 422, 72 Am. St. Rep. 920; Eufaula Nat. Bank v. Pruett, 128 Ala. 470, 30 So. 731; Caston v. McCord, 130 Ala. 318, 30 So. 431; Seymour v. Williams, 139 Ala. 414, 36 So. 187; Howison v. Bartlett, 141 Ala. 593, 37 So. 590.

Speaking of the liberality of this rule, Justice Head said in Webb v. Elyton Land Co., 105 Ala. 479, 18 So. 179: "The rule we have adopted commends itself for its conservatism and justice. Howsoever vulnerable it may be to the attack of technical and refined principles of law upon the subject of ambiguous writings, we are not so well satisfied that it is unwise as to be disposed to part from it." And Justice Sharpe said in Caston v. McCord, 130 Ala. 321, 30 So. 431: "In this state it has been settled by decisions so numerous as to establish a rule of property that mere indefiniteness in description, though it be such as to render a deed prima facie inoperative, does not necessarily have that effect; that evidence of extrinsic facts relative to the situation of the parties and the circumstances attending the conveyance may be looked to for the purpose of identifying its subject-matter; and that it is only upon the failure of evidence to give certainty to the description that the instrument will be declared void." It is the office of the description, not to identify the land, but to furnish the means of identification. This we think is accomplished by the memorandum in question, and the averments of the bill are designed only to aid in that result, not, as appellee's counsel argues, to show the intention of the parties as expressed dehors the writing. So far as the other features of the memorandum are concerned, we find nothing which is not readily intelligible and capable of practical enforcement.

Courts are loath to strike down a deliberate contract because of supposed uncertainty in any of its terms; and, if any of these terms are ambiguous and prima facie capable of more than one meaning, the court will look to the situation of the parties and the objects they had in view to determine their true meaning. Especially will the court in such cases construe doubtful terms against the party who framed them, and who is offering or undertaking to do the things in question. These are elementary principles, and their application to this memorandum answers every objection made to it. Thus viewed, it is too clear for serious dispute that Green offered to sell his farm to Minge in exchange for four pieces of city property, which were subject to stated mortgage incumbrances, in addition to which Minge was to give Green a mortgage on the farm for $2,000, due and payable in three years, or any date before then at Minge's option, and bearing 8 per cent. interest from the date of the mortgage, which should, of course, be executed when the contract was closed.

The recital that the Rosemont lots were bought "subject to title contract of $200," whatever it may mean, suggests no ambiguity in the contract, for it is...