Campbell v. Preece

133 Ky. 572 | Ky. Ct. App. | 1909

Opinion of the Court by

Judge O’Rear

Affirming .

In 1894 appellant sold to appellee by parol -contract, and put Mm in possession of, a tract of land situated “-on tlie Sfianty- branch on left fork of Peter creek, in Pike county, Kentucky,” (and wliicli is particulaiiy described in the pleadings and judgment in this daise), for the agreed price of $1,000, to be paid for by appellee in cutting, hauling, and delivering to appellant the timber from the land \at so much per thousand feet. A contract as to- some of the timber wlas not o'oneluded till 1900, when it was reduced to writing, and signed by both parties. It contained this recital: “That the said Preeee does hereby sell to the s'aid Campbell all the oak, poplar, a'sh, cucumber, basswood and any other woods that merchantable timber can be obtained from that is now standing on the lands that said Campbell sold to- said Preeee situated on the Shanty branch on the left fork of Peter Creek, Pike county, Kentucky, at $1.50 per M. feet where it now stands.” The first contract between the parties as to the timber to be cut and delivered in part payment for the land seems to- have been in parol. When it was executed, upon a settlement a balance was found due to appellee, which was credited upon the purchase price of the land, as evidenced by the following receipt: “$265. Phelps, Ky., March 31, 1899, Received of Joseph Preeee two hundred and sixty-five dollars as part payment on the land sold him by myself on the Shanty branch. A. W. Campbell.” A further credit was due upon a settlement of the second timber contract, which has been referred to above. Appellee failed to pay all the purchase money n>or was appellant a/ble, until after the commencement of this suit, to convey a good title to the land; nor did he ever offer to convey any title to appellee. This suit was brought recently by appelant -against appellee in ejectment, the former electing to treat his parol agree - ment to convey the land as void, because it was conceived by him to be within the statute of frauds and perjuries. Appellee defended, setting up the parol purchase of the land and the subsequent ratification thereof in writing, making profert of the two writings copied above. He tendered payment of the balance of the purchase money, and aske'd a specific execution of the contract. The action having been transferred to equity, the circuit court adjudged that the contract was enforceable, and- that it be specifically executed. Appellee plaid the adjudged balance of the purchase -money into court, which appellant declined to accept, bnt prosecutes this appeal from the judgment decreeing the performance of the contract. The question for decision is the sufficiency of the written memoranda of the contract.

The' statute of frauds and perjuries, as now in force in this state, so far as material to this clalse, reads (Sec. 470, Ky. St.): “No action shall be brought, -to charge tany person * * * upon any contract for the sale of real estate or any lease thereof for a larger term than one year, * * * unless the promise, contract, agreement, representation, assurance, ratification, or some memorandum or note thereof, be in writing, and -signed by the party to be charged therewith, or by Ms antborizeid agent. But the consideration need not be expressed in the writing; it may be proved when necessary, or it mlay be disproved by parol or -other evidence.” It is not necessary to the validity of the contract that it shall be in writing. If there be a written memorandum of it, signed'by the party to -be charged, it is taken out of the statute. Nor is it necessary that the memorandum be contemporaneous with the contract. If it be executed subsequently, and ratifies the contract, it is sufficient. Tbe statute pertains to evidence of the contract — not to its validity. While it follows that, if the required evidence of the contract be wanting, its enforcement is denied, and the contract is said to be void, it is void only because of the lack of legal evidence of its. existence.

The note or memorandum, required by the statute is such written declaration of the parties to the agreement as will relieve the court from relying upon parol evidence to ascertain the. subject of the contract. When the subject is established by a sufficient writing, there is then such evidence of the contract upon that score as satisfies the statute; and, if the contract be then established by the proof, it may be enforced. Nor is it necessary that the terms of the contract, in so far as they constitute part of the consideration, be stated in the writing, or, if stated therein, that they be proved us stated. Camp v. Moreman, 84 Ky. 635, 2 S. W. 179, 8 R. 552. The consideration, so the statute allows, may be shown by parol, even if to do so involve a contradiction of the written memorandum. Nor is it necessary that the .written memorandum, evidencing the contract or ratifying it, be contained in one writing. If two or more writings, signed by the party to he charged, and shown to bé referable to the same subject-matter, describe the property so that it may be identified, it is sufficient. Camp v. Moreman, supra. The parol .-agreement is not disputed. Both parties agree as to it. Nor is the identity of the property, or the balance -owing upon it, in dispute. So the ques ■ tion comes down to this: Is the subject of the contract sufficiently identified by the writings'?

Reading the two writings together, it is noted that appellant states he had 'theretofore sold appellee certain land on the Shanty branch on the left fork of Peter creek, in Pike county, Ky.. The location of the land is then established. Its boundary remains alone to !be ascertained. The writings s-peak of the transaction in the past -tense. It refers to the laud which Campbell had sold to Preece. If it had stated, “the land where Joseph Preece now lives,” or the land “where Joseph Preece lived in 1899,” it would not he questioned that the description would have been sufficient. Patrol evidence is always receivable to- identify khe land spoken of in the writing, hut not to designate it. Thus, in Henderson v. Perkins, 94 Ky. 207, 21 S.W. 1035, 14 R. 782, the memorandum ran: “Have this day sold and by these presents sell my home place and storehouse to- L. D. Perkins-, of Rocky Hill, Barren County, Kentucky, for 'and in consideration of four thousand dollars,” etc. The court said: “We think this is a sufficient 'memorandum -of the contract to take it out of the statute. There was a partial execution of it, and the. description of the land, although defective, was sufficiently full for easy identification. ’ ’

In Overstreet v. Rice, 4 Bush 1, 96 Am. Dec. 279, the memorandum was that the parties had “this day swapped farms.” It appears that eiaich had taken possession -of the land received in exchange by him. The court, implying that the. language of the writing was too uncertain to- he enforceable within itself, held that, w'hen the parties by their conduct had rendered the uncertainty sure by taking possession .amid con-\ summa'ting the mutual exchange, the impediment was removed. That was hut another way of identifying what would have 'been impossible without extraneous aid, .owing to the -ambiguity of the writing — a course familiar in the construction of contracts whose terms or descriptions are ambiguous. In Ellis v. Deadman’s Heirs, 4 Bibb, 466, the writing was “4 Jany. 1808. Received of Jesse Ellis $...., in part payment for a lot he bought of me in the town of Versailles, it being the cash part of the purchase of said lot. Nlathan De'adman. ” The writing was held to satisfy the statute as to the 'description of the lanld. Kay & Casey v. Curd, 6 B. Mon. 100, Tucker v. Denton (Ky.) 106 S. W. 280, 15 L. R. A. (N. S.) 289, Usher v. Floyd, 83 Ky. 552, 12 R. 721; Moayan v. Moayan, 114 Ky. 855, 72 S. W. 33, 60 L. R. A. 415, 102 Am. St. Rep. 303, 24 R. 1641, and Vorheis v. Eiting (Ky.) 22 S. W. 80, 15 R. 161, are relied on by appellant. Those cases (except Moayan v. Moayan) were instances where there was no identification, or means of identification, afforded by the writings. If the writing identifies the land, that, of course, ends the inquiry. If it does not identify it, but affords means of identification, that is deemed sufficient. If the means of identification are other records or writings, it is practically certain, But if not other writings, as-it may not be, it may nevertheless be a satisfactory means. All that is required is that it shall be susceptible of certainty. If, when the mean's are resorted to, it is still left open what lands are meant to be conveyed, the description will be bad. Therefore it is never good to refer to a 'future event, as that could not have been certain when the memorandum was made. But generally a reference to an existing or past event is good. There it can be known certainly what wlas intended; for that which has transpired is changeless. ‘ ‘ The place where I live” identifies one place only, and is susceptible of being shown definitely and unerringly. “The place which I sold to A.” is likewise susceptible of identification; and, if I had sold but one place to A., it is as certain 'as would have been a, more particular description. It is from such instances that the maxim has arisen, “That is certain which can be made certain.” If the description had read, “beginning at an oak tree on S'hanty branch in Pike county,” and “then following the marked lines land fences around the tract to the beginning, ’ ’ while it would have been held a sufficient description, it 'would have required extraneous aid to have located the particular oak that constituted 'the beginning comer, as well as the fences and line's around the tract. In the Moayan case, supra, it was said, inter alia: “It is as essential that the terms be specified as the description of the property.” That expression, taken out of its connection, is misleading. The court was there discussing the opinion in Ellis v. Deadman, supra, in which it had been held that the descrip-ton was good, but that the memorandum was deficient in not stating the terms of 'the contract. We were explaining the ground upon which Deiadman’s contract had been held insufficient under the statute, as it was. Eor the statute of frauds and perjuries of 1796, then under consideration (1 Litt. St. 371) did not contain the clause found in our present statute, relative to the consideration.

We find that the description in the memoranda in this case was sufficient to satisfy the statute. Hence, the judgment below is affirmed.