Rosen v. Phelps
| Decision Date | 05 July 1913 |
| Citation | 160 S.W. 104 |
| Parties | ROSEN v. PHELPS. |
| Court | Texas Court of Appeals |
Appeal from District Court, Bosque County; O. L. Lockett, Judge.
Action by Sam Rosen against M. Phelps. From a judgment for defendant, plaintiff appeals. Affirmed.
C. M. Templeton, of Ft. Worth, for appellant. S. C. Padelford, of Cleburne, and Cureton & Cureton, of Meridian, for appellee.
Appellant sought a specific performance of the following written contract:
When offered in evidence the contract was excluded on the ground that it was in violation of the statute of frauds; "there being no description of the property and land attempted to be described in the plaintiff's petition." The statute referred to (Rev. St. 1911, art. 3965) requires contracts for the sale or exchange of lands to be in writing; and, as said by this court in the case of Cusenbary v. Latimer, 28 Tex. Civ. App. 217, 67 S. W. 187: "No rule seems better settled than that before a court of equity will decree the specific performance of a contract for the sale of land, the written agreement required by the statute must contain the essential terms of a contract expressed with such certainty that it may be understood without recourse to parol evidence to show the intention of the parties, and that no part of such contract is more essential than that which identifies the subject-matter of the agreement" (citing Jones v. Carver, 59 Tex. 295; Patton v. Rucker, 29 Tex. 402; Mitchell v. Ireland, 54 Tex. 301; Mathews v. Jarrett, 20 W. Va. 415; Hollenbeck v. Prior, 5 Dak. 298, 40 N. W. 349; Strang v. Railway [C. C.] 93 Fed. 72; 2 Dev. on Deeds, § 1010).
It seems manifest that the contract under consideration within itself fails to give any such description of the lands therein referred to as is sufficient to identify them with reasonable certainty, and thus enable a court of equity to decree title in the plaintiff to the lands described in his petition, or to any definite or certain tract of land in Bosque county aggregating 3,000 acres, or in turn to vest in the defendant lots and blocks in any specified city or other locality of Tarrant county. The contract is that appellee will convey "a certain three thousand acres in Bosque county, Texas," without designating the owner, any particular locality, landmark, natural object, or other thing that fixes location, and makes no reference to any other writing by which the land can be identified. It is likewise so of the lots and blocks appellant was to convey to appellee. Appellant insists, however, that the description in the contract may be aided by the circumstances alleged in his petition. Briefly stated, plaintiff alleged that the lots and blocks referred to in the contract were lots and blocks in the Rosen Heights addition to the city of North Ft. Worth; that prior to the execution of the contract plaintiff and defendant went upon the ground and marked and checked off upon the plat of said addition the lots and blocks specified in the contract, and that the lots so marked and checked and described in the contract were the specific ones to be exchanged for defendant's 3,000 acres of land in Bosque county; that the 3,000 acres of land referred to in the contract were 3,000 acres of land near the town of Morgan in Bosque county owned by the defendant; that after the execution of the contract they had been inspected by the plaintiff and accepted; that at the time of or prior to the execution of the contract the agent of defendant had delivered to the plaintiff a printed circular particularly describing the situation of defendant's land, its divisions into pastures, the number of houses, barns, lots, windmills, and number of acres in cultivation, etc., and it was alleged that the land so described in said circular was the identical land exhibited to plaintiff by the defendant at the time of the inspection referred to and described in the petition; that said 3,000 acres...
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Matney v. Odom
...v. Moore, 112 Tex. 361, 247 S.W. 498; Starkey v. Texas Farm Mortg. Co., Tex.Civ.App., 45 S.W.2d 999, (writ refused); Rosen v. Phelps, Tex. Civ.App., 160 S.W. 104, (writ refused); MacLane v. Smith, Tex.Civ.App., 198 S.W. 2d 493, (no writ of error history); 37 C.J.S. Statute of Frauds, § 184;......
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Osborne v. Moore
...Jones v. Carver, 59 Tex. 293; Penn v. Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842 (writ refused); Rosen v. Phelps (Tex. Civ. App.) 160 S. W. 104 (writ refused); Kellner v. Ramdohr (Tex. Civ. App.) 207 S. W. 169, The memorandum on said check does not show in what town, city, ......
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Francis v. Thomas
...have been condemned in many cases, among which may be cited the following: Osborne v. Moore, 112 Tex. 361, 247 S.W. 498; Rosen v. Phelps (Tex.Civ.App.) 160 S.W. 104 (error ref.); Penn v. Texas Yellow Pine Lumber Co., 35 Tex.Civ.App. 181, 79 S.W. 842 (error ref.); Kellner v. Ramdohr (Tex. Ci......
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Gatewood v. Graves
...there cited; Jones v. Carver, 59 Tex. 293; Penn v. Texas Yellow Pine Lumber Co., 35 Tex. Civ. App. 181, 79 S. W. 842; Rosen v. Phelps (Tex. Civ. App.) 160 S. W. 104, writ refused. In the last-cited case this court "In brief, the authorities establish the rule that, for a contract to be suff......