U.S. Enterprises, Inc. v. Dauley

• Decision Date: 31 March 1976
• Docket Number: No. B--5436,B--5436
• Citation: U.S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex. 1976)
• Parties: U.S. ENTERPRISES, INC., Petitioner, v. Dean I. DAULEY et al., Respondents.
• Court: Texas Supreme Court

Page 623

535 S.W.2d 623

U.S. ENTERPRISES, INC., Petitioner, v. Dean I. DAULEY et al., Respondents.

No. B--5436.

Supreme Court of Texas.

March 31, 1976.

Sears, Parker, Quisenberry & Spurlock, Dean Spurlock, Fort Worth, for petitioner.

Thorne, Thorne & Robertson, Inc., Michael A. Robertson, Grand Prairie, for respondents.

DANIEL, Justice.

This is an appeal from a summary judgment holding that under the Statute of Frauds a written purchase contract purporting to cover 600 acres of land in three specifically named surveys in Wise County did not sufficiently describe two tracts in a fourth and different survey.

Petitioner, U.S. Enterprises, sued Coke L. Gage and wife for specific performance of a contract to sell approximately 600 acres of land in the J. G. Bullock, David Moses and J. H. Moore Surveys of Wise County, for approximately $750,000. The contract was dated July 17, 1972, and this suit was filed on May 24, 1973. The Gages denied the validity of the contract, asserting among other defenses that after they had signed the contract, and without their consent, U.S. Enterprises inserted therein the sum of $2,000 instead of an agreed minimum of $25,000 as earnest money; that the agreed minimum earnest money was not paid; and that the contract was unenforceable as to any lands because the descriptions therein were so uncertain, incomplete and indefinite that they violate the Statute of Frauds. ¹ While that suit was pending, on July 13, 1973, the Gages sold 30.621 acres in the A. J. Walker Survey of Wise County to Dauley Enterprises. The tract, hereinafter referred to as 30 acres, was described in the Dauley deed as a single tract with metes and bounds which indicate that it is triangular in shape, bounded on the south by the north line of Thompson Street in the City of Decatur, on the northeast by U.S. Highway 287, and on the west by F. M. Road 51.

U.S. Enterprises, claiming that the 30 acres was part of the land described in its contract with the Gages, interpleaded Dauley Enterprises, Dean I. Dauley, and others (hereinafter referred to as Dauley), in its suit against the Gages and sought to set aside the Dauley deed. The trial court granted summary judgment for Dauley on the ground that the contract between U.S. Enterprises and the Gages did not as a matter of law adequately describe any property sold by the Gages to Dauley. Thereafter, the trial court ordered a severance of U.S. Enterprises' cause of action against Dauley from the remainder of the main suit and entered a final judgment thereon. U.S. Enterprises appealed from the summary judgment in favor of Dauley but not from the order of severance. The court of civil appeals affirmed. 524 S.W.2d 339. We affirm.

On an appeal from a summary judgment, the facts established by the summary judgment proof must be construed in the light most favorable to the non-movant. Great American Reserve Insurance Company v. San Antonio Plumbing Supply Company, 391 S.W.2d 41 (Tex.1965). When so viewed, principally from the affidavit of Frank E. Snell, president of U.S. Enterprises, it appears that Snell and Gage drove by the ten parcels of land to be included in their proposed purchase contract in 1972; that tract 9, being listed as 26 acres, more or less, known as the Harvey Burress property, and tract 10, listed as 6 acres, more or less, known as the Decatur Baptist College property, were represented as being located within the 30 acre triangle later purchased by Dauley; that specific legal descriptions were not available when the contract was signed, but a map prepared by a U.S. Enterprises employee was attached as Exhibit A, with various sections thereon colored to indicate property included in the contract; that before the contract was signed, Snell and Gage 'discussed and went over the map . . . for the purpose of being certain which property was covered . . . and it was specifically understood that the triangular piece of property bordered on the northeast side by U.S. Highway 287, on the west side by State Farm to Market Road 51, and on the south by West Thompson, was a portion of the property included in the contract.' ² On July 12, 1973, the day before Dauley completed his purchase of the triangle from Gage, Snell talked with Dauley by telephone and advised him that the property was claimed by him to be included in the U.S. Enterprises-Gage contract and was subject to the pending litigation and a lis pendens notice on file in Wise County. Although the latter had no reference to or copy of the colored map, Exhibit A, and the copy attached to Plaintiff's Original Petition was without coloring, Dauley had actual notice that U.S. Enterprises was claiming to have a purchase contract on the triangle before he purchased it from the Gages. Thus we do not have before us the question of the rights of an innocent purchaser. As to the validity or invalidity of the description in the U.S. Enterprises-Gage contract, Dauley occupied the same position as the Gages insofar as the land in the triangle was concerned.

Question on Summary Judgment

In his motion for summary judgment, Dauley contended that neither the U.S. Enterprises-Gage contract, the pending lawsuit, nor the lis pendens described the 30 acres which Dauley purchased from the Gages. That also was the Gages' contention in their pleading of inadequate description under the Statute of Frauds, which was the only defense of the Gages that was available to Dauley on his motion for summary judgment. The sole question, presented, therefore, is whether the summary judgment proof established as a matter of law that the written descriptions of tract 9 and tract 10 in the U.S. Enterprises-Gage contract (including the map) were insufficient under the Statute of Frauds to locate such tracts with reasonable certainty as comprising the triangle in the A. J. Walker Survey. The sufficiency of the description of the remainder of the 600 acres in the U.S. Enterprises-Gage contract is not before us. The relevant provisions of the contract are as follows:

That we, Coke L. Gage and wife, Donnie Gage (hereinafter called Seller, whether one or more) hereby sell and agree to convey to U.S. Enterprises, Inc., or its nominee (hereinafter called Purchaser), and Purchaser hereby buys and agrees to pay for 600 acres of land, more or less, out of the J. G. Bullock Survey, Abstract No. 79, the David Moses Survey, Abstract No. 537, and the J. H. Moore Survey, Abstract No. 538, in Wise County, Texas, being generally described in ten (10) tracts as follows:

(1) 115.012 acres known as the Foster Estate property;

(2) 157.483 acres known as the Burress property;

(3) 193.97 acres known as the McDermitt property;

(4) 26.92 acres known as the Brown property;

(5) 21 acres, more or less, known as the Annie Mae Stevens property;

(6) 15 acres, more or less, known as the Elmer Wallace property;

(7) 32.34 acres, known as the Stevens property;

(8) 18.57 acres known as the Wallace property;

(9) 26 acres, more or less, known as the Harvey Burress property; and

(10) 6 acres, more or less, known as the Decatur Baptist College property;

Said property marked on Exhibit 'A' attached hereto and colored in green with the Bullock property colored in orange. Said contract includes all of the land owned in said surveys above described exclusive of the 200 acres in the J. H. Moore Survey described in Paragraph 15 hereof. It is understood that said lands are to be conveyed by accurate ground survey prepared by registered public surveyor or surveyors which said survey shall be furnished at Seller's expense prior to closing.

Below is a copy of the relevant portion of the map attached to the contract as Exhibit A. The Transcript reveals no coloring on any of the copies attached to the four pleadings filed by U.S. Enterprises in the trial court. The only copy in the record with the coloring reproduced as on the original contract is the copy attached to the affidavit of Frank E. Snell. We have drawn diagonal lines to denote the areas which were colored on the Snell copy, all being in green except the C. L. Gage 163.5 acres, which was in orange.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Test of Sufficiency of the Description

Both parties agree that the 30 acres in question purchased by Dauley from the Gages lies in the A. J. Walker Survey, Abstract No. 860. Dauley prevailed in the lower courts on undisputed proof of this fact and that the written portion of the contract between U.S. Enterprises and the Gages did not list or refer to any of the property as being in the A. J. Walker Survey. The typed description on the first page of the U.S. Enterprises-Gage contract specifically refers to '600 acres of land, more or less, out of the J. G. Bullock Survey, Abstract No. 79, the David Moses Survey, Abstract No. 537, and the J. H. Moore Survey, Abstract No. 538, in Wise County, Texas, being more generally described in ten (10) tracts as follows:' Following the list of tracts and the reference to 'said property' being marked on Exhibit A, is another general descriptive statement restricted to the named surveys. It reads: 'Said contract includes all of the land owned in said surveys above described exclusive of the 200 acres in the J. H. Moore Survey described in Paragraph 15 hereof.' There is no mention whatever of the A. J. Walker Survey either in the typed portion of the contract or on the attached map marked Exhibit A.

U.S. Enterprises counters with the argument that the green colored triangular area on the right-hand side of Exhibit A is in the A. J. Walker Survey and that omission of the name of the survey is not fatal because tracts 9 and 10 can both be located within that triangle through aid of the map. The question is whether that is possible from the means or data furnished within the contract, including Exhibit A, without resorting to impermissible parol evidence. In that connection, neither the face of the written contract nor the map...