Cole v. Cole

54 So. 953 | Miss. | 1910

Anderson, J.,

delivered the opinion of the court.

The appellant, Mrs. Pearl Cole, filed a bill against her husband, A. J. Cole, the appellee, for the specific performance of a prenuptial contract to convey her certain lands, owned by him, in consideration of marriage. The -appellee demurred to the bill, which demurrer was sustained, and, appellant declining to. amend her bill, the 'saíne was dismissed, from which she prosecutes this appeal.

The substantial averments of the bill are as follows: That the consideration for appellant’s marriage to the appellee was a prenuptial promise by the latter to convey to appellant one of four tracts of land owned by him, to be selected by her. That this contract is embodied in two letters, one of which was written February 17, 1909, and is as follows:

“Houlka, Miss., Feb. 16, 1909.

“Miss Pearl Cole—

“Dear Miss: I received your most kind and welcome letter. Oh, how glad I was to hear from you. I have no news to tell you. I wrote you a letter last Saturday, the 13th. I hope you have got it. Miss Pearl, your Pa and Ma do not want you to marry no one. If I was in your place, I would pay no attention to what they say about marrying. If you will stick to me, you will come away from there. I have got plenty of money to take care of you after I get you. I will make you a deed to a piece of land is worth twenty-five hundred dollars after we marry. Miss Pearl, I will be at your house this coming Sunday. Be sure and be at home. I will freely give my life for you. I love you better than any lady I evér saw. Be sure and write as soon as you get this note. I will come to a close. Miss Pearl, I am the best friend you have got on earth.

“A. J. Cole.”

•That the other letter, which was lost and for that reason could not be produced, was written on the 24th of February, 1909, in which appellee stated that, if appellant -would marry him, he would make her a deed to either one of four tracts of land owned by him, which was all the land he owned, each tract worth two thousand and five hundred dollars, she to select the one she desired a deed to. That thereupon, in consideration of the terms contained in said letters, they were married and lived together about fourteen months, when the appellee ‘ ‘ deliberately carried ber home and refused to live with her further.” That it was understood and agreed between the appellant and the appellee, both before and after they were married, that her choice of his four tracts of land was one in Chickasaw county, described in the bill. That after their marriage the appellant frequently demanded of the appellee that he comply with his promise to convey her said tract of land, which he refused to do.

The demurrer raises the question whether the contract evidenced by these letters is within the statute of frauds (section 4775, Code of 1906), which declares void contracts in consideration of marriage and contracts for the sale of land, unless such contracts are in writing, signed by the parties sought to be charged. Clearly the letters themselves did not certainly identify the land. The rule is, however, that if the description contained in the writing points to specific property, parol evidence is admissible to identify it, because that is certain which is capable of being made certain. In 20 Cyc., p. 270, the rule is well stated thus: “In general, the description of the land in a memorandum of a contract for sale of lands must be sufficiently definite to identify the land by its own terms, or by reference in it to external standards in existence at the time of the making of the contract and capable of being determined beyond dispute.”

Do the letters, by their terms, refer to any external standard, in existence at the time they were written, from which the land can be certainly identified by parol testimony? The letters point out neither the state nor the county in which the four tracts of land are situated, the quantity of land in each tract, nor any description whatever of the tract to be conveyed,, except that it is one of four tracts owned by the appellee, to be selected by the appellant. For all that appears in the letters, the four tracts may or may not be in the state of Mississippi, or even in the United States. Can it be said that (quoting from the bill the .contents of the lost letter) “one of his tracts of land, worth two thousand and five hundred dollars, stating that he had and owned only four tracts of land, either of which was worth that amount, and that he would take her to look over them, and she could take her choice of said places, ’ ’ is such a reference to an external standard, in existence at the time the letters were written, as that the land intended could be certainly identified by parol? It is true that the four tracts of land were in existence at the time; but this was insufficient to meet the requirements of the rule. The external fact (if it may be called a fact) referred to by the letters, from which alone the lands were to be identified, was the right of choice of one of the four tracts, to be thereafter exercised by the appellant. This was no external standard in existence at the time the letters were written. It was a matter about which she could have changed her mind every day, or oftener, until the final selection was made. As said in McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649: “Extrinsic evidence is admissible only to construe and apply the terms of the writing.” How could the terms of these letters be construed and applied, so as to ascertain what land was intended, when, at the time they were written, no selection had been made by the appellant, and none was to be made until afterwards.

As to what land was selected by the appellant rests entirely in parol; in fact, the whole matter of the identification of the land rests in parol. In Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 372, the contract was to convey a “lot on the corner of Main and Pearl streets, city of Natchez, Adams county, Mississippi,” which the court held to be within the statute of frauds, saying: “In the case under consideration, the memorandum or receipt refers to no extrinsic fact by which it could be ascertained on which corner of Main and Pearl streets the land in controversy is situated. And to allow parol evidence to establish its locality would be in violation of the statute, in allowing that to pass by parol which the statute says shall not so pass, and would open the door to all the mischiefs intended to be provided agaihst by the statute.” The right of the appellant to make choice .of the tract of land which appellee was to convey to her cannot be said to be an “extrinsic fact,” to which resort may be had by parol. The right to choose is not an ‘ ‘ extrinsic fact.” It is a mere state of mind, and makes the identification of the land even more vague and uncertain than the letters themselves. The object of the statute.of frauds was to prevent .frauds and perjuries. The contract here clearly comes within the evils sought to be ■avoided by the statute. To illustrate: If this case were tried, the appellant’s evidence might tend to prove that she had selected a certain tract of land; while that of appellee might tend to show that she had either made no selection at all, or had selected a different tract from the one claimed by her to have been selected.

The principle declared by this court in Stevenson v. Renardet, 83 Miss. 392, 35 South. 576, and other authorities, to the effect that prenuptial contracts are to be construed liberally in favor of the wife, may not be so extended, as is sought to be done here, as to overturn the statute of frauds. The provision of the statute of frauds, which declares void contracts for the sale of lands unless in writing, applies, whether such contracts are made in consideration of marriage or otherwise. In other words, a contract to convey land in consideration of marriage will be void under the statute of frauds, if it would be void were the consideration money or something else than marriage. The decisions of this court construing the provision of the statute of frauds requiring contracts for the sale of lands to be in writing apply with equal force to contracts to convey lands in consideration of marriage. There can be no possible reason for the application of any different principles. This court has consistently refused to ingraft any exceptions on the statute of frauds. Where parties place their contracts of marriage on a monetary basis, they have no right to complain that the courts apply to such contracts the same principles of law which govern other transactions based on like considerations. Affirmed.