Roberts v. Bennett

• Decision Date: 09 November 1915
• Citation: 179 S.W. 605,166 Ky. 588
• Parties: ROBERTS v. BENNETT ET AL.
• Court: Kentucky Court of Appeals

179 S.W. 605

166 Ky. 588

ROBERTS v. BENNETT ET AL.

Court of Appeals of Kentucky.

November 9, 1915

Appeal from Circuit Court; Henderson County.

Suit by R. R. Roberts against H. T. Bennett and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Montgomery Merritt and Yeaman & Yeaman, all of Henderson, for appellant.

Clay &amp Clay, of Henderson, for appellees.

HANNAH J.

This is a suit to enforce the specific performance of a contract for the sale of land. The contract reads as follows:

"Henderson Kentucky, March 12, 1913. This agreement entered into between R. R. Roberts, party of the first part, and Henry and Thos. Bennett, parties of the second part, witnesseth We, Henry and Thos. Bennett, parties of the second part, agree to pay to Roberts, party of the first part, seven thousand and five hundred dollars cash, and give him seven notes of $2,228.57, due January 1st of each year, beginning January 1, 1914, bearing interest at 6% payable semiannually, for his farm of 210 acres, more or less, on the Knoblick Pike. Said Roberts agrees to deed a driveway of twenty feet on north line of his farm; said second party to fence same. And Roberts further agrees to keep and care for farm, and to pay $1,000 rent for said farm, and to give possession January 1, 1914. Said Roberts is to remove what cut posts he now has on said farm. It is further agreed and understood that if parties of the second part fail to raise the cash payment of $7,500, then this agreement is to be null and void. Said party of second part has hereby paid to said first party five dollars to bind this contract agreement."

This was signed by all the parties mentioned.

The Bennetts paid Roberts $1,000 on said contract, and, failing to make further payments, or to further carry out their part of said contract, Roberts sued them for specific performance thereof. From a judgment in favor of the defendants, rescinding the contract and adjudging a return of the $1,000 so paid to him, the plaintiff appeals.

Only one of the defenses interposed by the defendants is here necessary to be considered--that the contract, for want of a sufficient description of the lands intended to be sold, is within the statute of frauds and therefore unenforceable. At the time of the making of this contract, Roberts was the owner of the lands shown upon the accompanying diagram, comprising 304.59 acres. This land was originally in three tracts. The tract of 70 acres he purchased from a man named Schuette. The remainder he derived by the following conveyances: (1) A deed from Wynne G. Dixon and wife to Edward Roberts, Eula Roberts, and R. R. Roberts, conveying two tracts, one of 89.72 acres, and the other of 144.87 acres; (2) a deed from Eula Roberts to R. R. Roberts, conveying her undivided interest in the lands mentioned, Edward Roberts, uncle of Eula Roberts, and R. R. Roberts, having died intestate leaving them his sole heirs at law.

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As has been seen, the language of the contract was "his farm of 210 acres, more or less, on the Knoblick Road." Plaintiff offered to convey to defendants 214.59 acres of said 304.59 acres of land owned by him, and undertakes to explain by parol evidence that the land intended to be sold was the 144.87-acre tract, and that parcel of land marked on the map as 69.72 acres, it being a portion of the tract of 89.72 acres acquired by him as above set forth; that it was understood by the parties that there should be retained by him, out of the 89.72-acre tract, that parcel shown on the map as 20 acres, although it was estimated at the time to contain 25 acres; and that the two tracts sold would contain 210 acres, although upon a survey it was found that their combined acreage was 214.59 acres.

It will be observed that none of Roberts' land abuts directly on the Knoblick Road, and especially none of the portions which he claims were agreed to be sold to appellees, and appellees argue that this is fatal to the contract. It appears, however, that that road is the principal outlet from the 70 acres, the 20 acres, and the 69.72 acres on which the farmhouse and other buildings are located, being reached, as shown on the map, by passing over a tributary road, known as the Schuette Road, and so marked on the map.

A railroad crosses that corner of the 69.72 acres next to the 144.87 acres. These two tracts touch only at a single point, and Roberts has no writing granting him a passway from the one to the other of these two tracts, though he claims that one of his remote vendors had such a grant.

The question is whether, under the circumstances here shown, the description, "his farm of 210 acres more or less on the Knoblick Road," is sufficiently definite to take the memorandum out of the statute. Waiving the fact that Roberts' land does not abut on the Knoblick Road, we still have the language "his farm of 210 acres," and are confronted with the question whether this is sufficient, when the vendor has in fact 304.59 acres at the place he claims is designated in the writing and offers to convey only 214.59 acres thereof. In Jones v. Tye, 93 Ky. 390, 20 S.W. 388, 14 Ky. Law Rep. 448,...