Rushton v. McKee & Co.

• Decision Date: 20 December 1917
• Docket Number: 7 Div. 895
• Citation: 77 So. 343,201 Ala. 49
• Parties: RUSHTON v. McKEE & CO. et al.
• Court: Alabama Supreme Court

77 So. 343

201 Ala. 49

RUSHTON v. McKEE & CO. et al.

7 Div. 895

Supreme Court of Alabama

December 20, 1917

Appeal from Circuit Court, Talladega County; Hugh D. Merrill, Judge.

Bill in equity by W.W. Rushton against McKee & Co. and others. Decree for respondents, and complainant appeals. Affirmed.

C.S Ellis, of Talladega, for appellant.

W.B Harrison, of Talladega, for appellees.

MAYFIELD J.

The bill is for specific performance of a contract to convey in fee 1,920 acres of land, and timber rights to 240 acres described in the bill as follows:

"Lands lying and being situate in the county of Talladega, state of Alabama, to wit: S.W. 1/4 of Sec. 20 N.W. 1/4 of Sec. 29, S.W. 1/4 of Sec. 29, part of S.E. 1/4 of Sec. 19, part of E. 1/2 of Sec. 30, S.W. 1/4 of Sec. 30, N.W. 1/4 of Sec. 31, E. 1/2 of Sec. 31, Sec. 25, all in Township 21, Ranges 1 & 2 E., and containing in all 1,920 acres, more or less, together with the timber rights on 240 acres, more or less, adjoining said above-described tract."

A demurrer was interposed to the original and amended bills, containing 35 grounds of demurrer. The demurrer was sustained on the ground that the contract sought to be enforced was void under the statute of frauds, and for uncertainty, and complainant appeals.

As early as 1746, Lord Hardwicke said:

"The constant doctrine of this court is, that it is in their discretion whether they will decree a specific performance, or leave the plaintiff to his remedy at law." 3 Atk. 388.

This doctrine has been steadily maintained down to the present time. Seymour v. Delancey, 6 Johns.Ch. (N.Y.) 222; Ellis v. Burden, 1 Ala. 458; 2 Story's Equity, 736-742. "The question is not what the courts must do, but what the court may do, under the circumstances." This discretion is not an arbitrary assumption of authority, but a sound discretion, regulated, as near as may be, by general rules. Pulliam v. Owen & Russell, 25 Ala. 492; Sims v. McEwen's Adm'r, 27 Ala. 184; Casey v. Holmes Bott & Earle, 10 Ala. 777.

Specific performance will not be had if the performance as distinguished from damages or compensation in money for the breach cannot be of importance to complainant.

A contract will not be specifically enforced unless it is certain in its terms, or can be made certain, under the rules of law and evidence; nor can it be enforced if it leaves any of its terms open to future treaty or to be afterwards settled. Stanton et al. v. Miller et al., 58 N.Y. 192. A court of equity never interferes, where the power of revocation exists. Express Co. v. Railroad Co., 99 U.S. 191, 25 L.Ed. 319.

Mutuality is necessary to specific performance; that is, the plaintiff cannot enforce against the defendant unless the defendant could enforce against the plaintiff. Marble Co. v. Ripley, 10 Wall (U.S.) 339, 19 L.Ed. 955.

It is, we hold, certain that the trial court properly sustained the demurrer to the original and amended bills. All the complainant could ask would be that the contract alleged be specifically enforced by compelling respondents to convey the property described in the bill. If that should be done, the deed would be absolutely void, on account of indefiniteness and uncertainty as to the property conveyed or attempted to be conveyed. Certainly the court ought not to compel the doing of such a useless thing. It will be observed that certain parts of sections 19, 20, 29, and 30 are particularly described, and the land is described as being in Talladega county, and state of Alabama, and as being in township 21, ranges 1 and 2 east. Which sections are of range 1, and which of range 2? Or does the description include the corresponding sections in both ranges? This specification as to ranges renders the whole deed void for uncertainty. Suppose the sheriff should attempt to put complainant in possession of the land thus described. Would he put him in possession of that part of section 19 (township 21), range 1 east, or in possession of similarly described land, as to section and township, in range 2 east? The two tracts are six miles apart. Or would he put him in possession of that part of both sections? And the same is true as to each of the other sections named.

Then, as to timber rights on "240 acres more or less, adjoining said above-described tract." This, of course, is so far incapable of ascertainment as to need no argument to show its incurable vagueness.

The following authorities and reasons show this description to be absolutely void and incapable of being made certain, when in an absolute deed, to say nothing of a mere contract to convey, as to which the statute of frauds would also apply.

When a contract or conveyance, on its face, or aided by judicial knowledge, equally describes two or more persons, things etc., this is patent ambiguity, or ambiguity apparent. In such a case the rule is clear, and we do not wish to depart from it, that parol proof of what was intended by the contracting parties will not be received. Latent ambiguity exists when, on the face of the paper, no doubt or uncertainty exists, but by proof aliunde the language is shown to be alike applicable to two or more persons, things, etc. When this is the case, the uncertainty or ambiguity may be explained or cleared up by the same character of proof as that by which it is made to appear. These are familiar principles. But there are case...