46 Ind. 426 | Ind. | 1873
This was an action, originally commenced in the Johnson Circuit Court, at the September term, 1871, by appellants against appellees, John and Joseph, and their wives, Rachel and Sarah Kerlin, and Horace Allen. The complaint is in two paragraphs. The facts averred in the first paragraph are substantially as follows: That on the
“ Messrs. Baldwin & Payne : Gents, We will give you ■our woollen mills, with all the appurtenances thereunto, situ
“Franklin, April 7th, 1871. J- & J- Kerlin.”
“ We accept the above proposition.
“ Baldwin & Payne.”
That appellants have always been and still are ready to. perform their part of the contract; that on the 1 ith day of April, 1871, they tendered the Kerlins a warranty deed, duly stamped, for the Kansas land, a note, duly stamped, for five-hundred dollars, due on or before October 7th, 1871, and one thousand dollars in United States treasury notes, and demanded performance of the contract by the Kerlins on their part, which they refused to perform, and have ever since refused, to appellants’ damage ten thousand dollars; that appellee Allen claims some interest, the nature of which is to-the appellants unknown, in said woollén mills and' appurtenances. The paragraph concludes with a prayer for specific performance, and also the usual prayer for all proper-relief.
The second paragraph alleges substantially all the facts, averred in the first paragraph, and in addition the following r. “ That one'Joseph Garshwiler was employed by the Kerlins to reduce the agreement to writing; that he did draw up. the contract set forth in exhibit A, purporting and intended to be executed in compliance with and to embody said agreement, but by mistake, and without any fault of appellants, said written contract did not fully set forth the agreement of the parties, but was nevertheless signed and executed by all the parties thereto in good faith, all supposing that said written contract was conformable to and embodied their agreement; that afterward appellee Horace Allen purchased said woolen mills and appurtenances, and received a conveyance thereof from the Kerlins; and at the time of the payment
Copies of the written contract, deed, and note are filed as parts of both the first and second paragraphs, marked “exhibit A.” Afterward, on the 6th day of February, 1872, appellants filed a supplemental complaint against appellee Deloss Root. The supplemental complaint alleges that since the filing of the original complaint, appellee Root purchased of 'appellee Allen an interest in the woollen mills, etc. It concludes with a prayer thatRoot be made a defendant to answer as to his interest, and that he may be bound by the decree, etc.
At the September term, 1872, all the appellees appeared, and the following demurrers were filed, all for the fifth statutory cause:
1. A joint demurrer to the complaint by all the appellees.
2. A joint demurrer to the complaint by John and Joseph Kerlin.
3. A joint demurrer to the complaint by Rachel and Sarah Kerlin.
4. A separate demurrer to the complaint by Horace Allen.
5. A separate demurrer to the original and supplemental complaint by Deloss Root.
All the demurrers were sustained; to the ruling sustaining all and each of which appellants at the time excepted. Appellants declining to amend, judgment was rendered accordingly against appellants, and in favor of appellees, for costs. The errors assigned are:
1. The sustaining of the joint demurrer to the complaint of all the appellees.
2. The sustaining of the joint demurrer of appellees John and Joseph Kerlin to the complaint.
4. The sustaining of the separate demurrer of appellee Root to the original and supplemental complaints.
Three questions are discussed with marked ability by counsel, and they are:
1. Is the contract susceptible of enforcement, as it reads?
2. Should the contract be reformed, as asked ?
3. If the contract is reformed as prayed for, should it be ■enforced ?
The questions discussed under the first proposition are, whether the description of the mill property is sufficient to "be enforced; and if not, may the description be aided by parol evidence ?
■ Is the contract as it now reads susceptible of enforcement, or is it void on account of the defective description of the property to be exchanged ? An ageement to convey lands will not be enforced unless it “ contain the essential terms of the contract, expressed with such a degree of certainty that it may be understood without recourse to parol •evidence to show the intention of the parties.” Browne Stat. Frauds, sec. 371.
The same learned author says : “ It must, of course, appear from the memorandum, what is the subject-matter of the ■defendant’s engagement. Land, for instance, which is purported to be bargained for, must be so described that it may be identified.” Browne Stat. Frauds, sec. 385, and authorities ‘there cited.
It has been held by this court, that in an action to enforce specific performance of a contract for the conveyance of land, if the contract states sufficiently every other fact required in such a contract by the statute of frauds, but fails to clearly Identify the land to be conveyed, by an intelligible description, but contains a description which, so far as it goes, is consistent, such ambiguity may be explained, and the defective description made complete by extrinsic parol evidence, •provided the necessary averments are contained in the com
But courts never permit parol evidence to be given, first-to describe the land, and then to apply the description. Ferguson v. Staver, 33 Penn. St. 411, and authorities. there cited. Nor do courts ever permit parol evidence to be given to contradict the written agreement, but only in aid of it. Torr sr. Torr, supra.
It will be observed in the 'case at bar, that the contract - describes the premises of Kerlins to be in the public square In. Franklin, Indiana. The public square is a well defined portion. of the city plat. The complaint which seeks to enforce this contract shows that the premises are not in the public square, nor even adjoining it. To permit this kind of evidence would be to contradict the written agreement, and to furnish a new and different description. -It is proposed to prove that the Kerlins owned woollen mills on lots forty-two and forty-three, in the original plat of the city of Franklin ; that the lots adjoined the north-west corner of the public square, separated, of course, by the street, and that the mills are on the west ends of these lots. Such proof would not aid the • description given in the written agreement, but would contradict it. If the description had been “our woollen mills in the city of Franklin,” it might have been shown that they owned but one woollen mill in such city, and might have shown where it was situated. This would have been consistent with the description, as far as it went, and would have •
But how are the six hundred and forty acres of land in Anderson county, Kansas, to be identified ? There is no description of the land, nor is there any mode agreed upon by which the lands intended can be identified and described. It is not described as the land owned in the county named by Baldwin and Payne, nor as such lands as they, or some other person named, might select out of the lands owned by them; but simply six hundred and forty acres, without any description or mode of selection. In Carpenter v. Lockhart, 1 Ind. 434, the description of the land was very defective, but it was held sufficient, because there was in the instrument a mode agreed upon of selecting the lands intended. To permit parol proof to show what land was intended, or to permit Baldwin and Payne to select any lands they pleased, would be to make a new and different contract for the parties. Suppose that the Kerlins had performed the contract on their part, and had brought an action to compel specific performance on the part of Baldwin and Payne, what land would they have been required to convey, and how could it have been identified and described ?
In Howell v. Zerbee, 26 Ind. 214, the property was described as “ the mill and machinery located on the following real estate, to wit: situated in the county of Starke, and State of Indiana, a part'of lot 3, section 36, in township 33, range 4 west, containing five acres and the court held the description defective. The court say: “ It contains a patent ambiguity, in not defining the particular part of lot 3 intended, and there is nothing in the description by which the part intended can be ascertained and rendered certain. It is therefore void for uncertainty.”
In the above case, it was certain that there was five acres of ground upon which the mill was erected, and that such
We are of opinion that the contract set out in the first paragraph of the complaint is too vague and uncertain as to the description of the property proposed to be exchanged; and that such description cannot be aided, or the property identified, by parol evidence. The court committed no error in sustaining the demurrer to the first paragraph of the complaint.
We proceed to inquire whether the facts stated in the second paragraph of the complaint entitled the appellants to a reformation of the contract. The second paragraph alleges that on the 7th day of April, 1871, the plaintiffs were the owners of six hundred and forty acres of land in Anderson county, in the State of Kansas, which is described according to the congressional survey; that on said day the defendants Kerlins were the owners of a woollen mill, situated on certain described lots in the city of Franklin, Indiana; that on said day the parties agreed to exchange the said property upon the terms and conditions set out in the proposition and acceptance. The paragraph then alleges : “ That one Joseph Garshwiler was, by said defendants, employed to reduce said
In Nevius v. Dunlap, 33 N. Y. 676, this language is used: “To entitlev a party to the decree of a court of equity, reforming a written instrument, he must show, first, a plain mistake, clearly made out by satisfactory proofs. * * In the second place, he must show that the material stipulation which he claims should be omitted or inserted in the instrument, was omitted or inserted contrary to the intention of both parties, and under a mutual mistake.” To the same effect are the following authorities: Story Eq., secs. 152-157; Waterman v. Dutton, 6 Wis. 265; Newton v. Holley, 6 Wis. 592; Lake v. Meacham, 13 Wis. 355; Fowler v. Adams, 13 Wis. 458; Harrison v. The Juneau Bank, 17 Wis. 340; Powell v. Smith, Law Rep. 14 Eq. Cas. 85; Nelson v. Davis, 40 Ind. 366; Allen v. Anderson, 44 Ind. 395.
In Nelson v. Davis, supra, the court say: “ But there is, ■if possible, a still more fatal defect in the answer. It is not .alleged that anything was omitted in the deed that was ■directed to be inserted, or that anything was inserted, by mistake or otherwise, contrary to the direction of the parties.”
In Allen v. Anderson, supra, the court say: “ The mistake must be one of fact, and not of law. It must be shown that words were inserted that were intended to be left out, or that words were omitted which were intended to be inserted.”
It is very obvious, from the foregoing authorities, that the
We have, after very careful and mature. consideration,.
The judgment is affirmed, with costs.