Ogilvie v. Hill, 8559

• Decision Date: 07 March 1978
• Docket Number: No. 8559,8559
• Citation: 563 S.W.2d 846
• Parties: Randall Dean OGILVIE, Trustee, et al., Appellants, v. Bill HILL, Appellee.
• Court: Texas Court of Appeals

Page 846

563 S.W.2d 846

Randall Dean OGILVIE, Trustee, et al., Appellants, v. Bill HILL, Appellee.

No. 8559.

Court of Civil Appeals of Texas, Texarkana.

March 7, 1978.

Rehearing Denied March 28, 1978.

Stephen B. Early, Longview, for appellants.

Earl Sharp, Sharp, Ward & Ross, Longview, for appellee.

CORNELIUS, Chief Justice.

Appellee Hill, as seller, entered into a contract of sale with Appellant Ogilvie, Trustee, ¹ as buyer, which provided for the sale of 21.37 acres of land in Gregg County, Texas. Some six months later, appellee filed suit against Ogilvie and his trust beneficiaries seeking a cancellation of the contract on the grounds that the property description was insufficient to comply with the statute of frauds, ² and that a certain condition relating to the construction of a road had not been fulfilled. After several amendments of the pleadings had been filed and certain discovery was accomplished, both appellants and appellee moved for summary judgment. On May 10, 1977, based upon its conclusion that the contract of sale did not comply with the statute of frauds because the property description was insufficient, the district court rendered summary judgment cancelling it.

Appellants urge that the property description was sufficient, and even if not sufficient, summary judgment should not have been granted because they were entitled to a trial on their plea for reformation of the contract.

The contract of sale described the property as follows:

"A certain 21.37 acre tract to be determined by actual survey and resulting in metes and bounds description to follow; said 21.37 acre tract being a part of the Will Davis 151.0 acre tract in the Robert H. Foote Survey, Gregg County, Texas."

Field notes were neither attached to nor included in the contract.

For a conveyance or contract of sale to meet the requirements of the statute of frauds, it must, insofar as the property description is concerned, furnish within itself or by reference to other identified writings then in existence, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945); 5 F. Lange, Texas Land Titles Sec. 762, at 154 (1961); 26 Tex.Jur.2d, Frauds, Statute of, Sec. 95, p. 252. The rule is easy of statement but difficult of application. There is considerable disparity among the decisions of our courts on the question, and it is difficult if not impossible to reconcile all of the cases, but the better and more recently accepted view is that a land description such as the one involved here, standing alone, is insufficient to comply with our statute of frauds. Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Matney v. Odom, 147 Tex. 26, 210 S.W.2d 980 (1948); Greer v. Greer, 144 Tex. 528, 191 S.W.2d 848 (1946); Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935); Pfeiffer v. Lindsay,66 Tex. 123, 1 S.W. 264 (1886); Norris v. Hunt, 51 Tex. 609 (1879); Brown v. Mitchell, 225 Ga. 115, 166 S.E.2d 571 (1969); Laurens County Board of Education v. Stanley, 187 Ga. 389, 200 S.E. 294 (1938). It fails to furnish within itself, or by reference to other identified writings, the means whereby the land may be specifically located, and it does not fall within the recognized exception which allows a purchaser of an undescribed portion of the seller's larger described tract to select and locate the portion so conveyed. See Turner v. Hunt, 131 Tex. 492, 116 S.W.2d 688 (1938); Dohoney v. Womack,1 Tex.Civ.App. 354, 19 S.W. 883 (1892); Nye v. Moody, 70 Tex. 434, 8 S.W. 606 (1888); Dull v. Blum, 68 Tex. 299, 4 S.W. 489 (1887); and cases discussed in Annot., 117 A.L.R. 1086. In testing the sufficiency of the description here we have considered the contract as a whole, including the references contained in the hereinafter quoted provision concerning construction of a road. Neither can the description be deemed adequate under the rule that a reference to the ownership of the tract being conveyed may render the description sufficiently definite to comply with the statute of frauds. Although the summary judgment proof showed that the land referred to in the contract of sale was owned by appellee and was the only tract he owned in the Robert H. Foote Survey, that alone is not sufficient to bring this case within the rule. A reference to ownership must be contained in the writing itself. Kmiec v. Reagan, 556 S.W.2d 567 (Tex.1977); Broaddus v. Grout,152 Tex. 398, 258 S.W.2d 308 (1953); Pickett v. Bishop, 148 Tex. 207, 223 S.W.2d 222 (1949); Wilson v. Fisher, supra; 5 F. Lange, Texas Land Titles Sec. 762, at 159 (1961). In the contract involved here there is no reference to the ownership of the tract being conveyed, and it cannot be inferred, from the mere fact that appellee signed a contract of sale, that he was the owner of the land described. Wilson v. Fisher, supra; Starkey v. Texas Farm Mortgage Co., 45 S.W.2d 999 (Tex.Civ.App. Waco 1932, writ ref'd).

Nevertheless, in the posture of this case at the time of its disposition in the trial court, summary judgment cancelling the contract was not proper. When the minds of the buyer and seller meet as to the identity of the specific tract of land which is the subject of their contract, but by mutual mistake they misdescribe it or omit a correct description thereof, the contract may be reformed to correct the error or to supply the omission. 49 Tex.Jur.2d, Reformation of Instruments, Sec. 22, pp. 622, 623; compare National Resort Communities, Inc. v. Cain, 526 S.W.2d 510 (Tex.1975), and see also Gilbert v. Smith, 49 S.W.2d 702 (Tex.Comm.App.1932, judgmt. adopted), and Burress v. Byrd, 69 S.W.2d 529 (Tex.Civ.App Texarkana 1934, writ dism'd). And the mutual mistake which will warrant such reformation may be either that the parties mistakenly believed the description in the contract was legally sufficient, Morrow v. Shotwell, supra; Foster v. Bullard, 496 S.W.2d 724 (Tex.Civ.App. Austin 1973, writ ref'd n.r.e.), or that field notes were intended to be, but were not, attached to the contract either at or after its signing. Shotwell v. Morrow, 498 S.W.2d 432 (Tex.Civ.App. Eastland 1973, writ ref'd n.r.e.); compare Foster v. Lessing, 346 S.W.2d 939 (Tex.Civ.App. Waco 1961, writ ref'd n.r.e.), and Norton v. Conner, 14 S.W. 193 (Tex.1890).

In the instant case, answers to interrogatories, admissions and certain statements ³ in appellants' affidavits opposing summary judgment make clear that the parties contracted with reference to a specific, identified, segregated tract of 21.37 acres in the Robert H. Foote Survey of Gregg County, Texas, with which all of them were familiar and which was the only tract...