110 Ga. 159 | Ga. | 1900
Douglass exhibited his petition to the judge of the superior court of Ware county, in which he alleged that he resided in Appling county; that he owned 200 acres of lot of land number 456 in the 5th district of Appling county, describing it; that the defendants in error recently entered upon said land and with their servants and employees began cutting and felling the pine timber on the land, with the intention of removing the same and converting it to their own use, and are now so engaged; that they have no title to said land, nor to the timber thereon; that he has been greatly damaged by reason of said cutting; and he prays that the defendants be restrained from entering or cutting the timber on the land, and be permanently enjoined from removing the same. Attached to the petition was
“Sessoms, Ga., September 5th, 1896. Keceived of J. E. &*161 T. Bunn ten ($10.00) dollars, as a confirmation of the trade, and in part payment on four lots of timber, more or less, sold to them by me on this the. 5th day of September, 1899. Leases on same to be made out and turned over to said J. R. and T. Bunn as soon as possible; terms are to be cash on delivery of said leases. Price of said timber is agreed at $2.50 per acre.
Q. Douglass.”
Evidently the first-named date is a clerical error, and the figures 1896 should be 1899. The plaintiff demurred to so much of the answer as in the nature of a cross-bill sought affirmative relief by way of specific performance of the alleged contract,"on the ground that the contract is not binding on the promisor, because it relates to real property, and that no such writing in relation thereto was signed as is required by the statute of frauds. No reference to the evidence in detail is deemed necessary. There was no question as to the execution and delivery of the receipt, which is the only written evidence»of the contract, nor as to the payment of the sum recited therein. Much evidence was admitted tending to show, on the part of the plaintiff, a failure of the defendants to pay the money and receive the leases; and, on the part of the defendants, that the plaintiff refused to accept the price agreed on and execute the leases, as well as to other points, among them that the plaintiff has solemnly admitted, in judicio, the sale of the timber as claimed by defendants. It is recited in the bill of exceptions that the evidence of the defendants, as well as the rebuttal evidence, was admitted subject to the right reserved by the plaintiff unto himself to claim and insist, in the argument of the case, that the contract was not binding on the promisor under the statute of frauds; that, as the contract contained no description of the real property, parol evidence can not be resorted to to describe the land, and that if the contract of sale of the timber is to be treated as a contract in parol, such contract is not admitted in all of its legal essentials. At the hearing the judge refused the injunction, and by his order expressly permitted the defendants to cut and use the timber upon the land claimed by them to have been referred to in the written contract, upon their first giving a bond in the sum of five thousand dollars, conditioned to
Trees growing upon land constitute part of the realty, and a sale of them must, under the statute of frauds, in order to be binding, be in writing. Coody v. Gress Lumber Company, 82 Ga. 793. Section 2693 of the Civil Code declares that, to- make a contract for the sale of lands or any interest in or concerning them binding on the promisor, the promise must be in writing, signed by the party to be charged therewith, or by some authorized person. If we discard all extrinsic evidence and look alone to the words of the writing, we find what appears to be an agreement on the part of the petitioner, for a specific price, to sell certain wholly undefined lots of timber, or rather to execute leases for a time not stated, permitting1 the lessee to have the growing timber on lots of land not in any way designated or described. We can not tell from this writing in what county or district the lands are situated, nor indeed in what State they lie. In other words, the agreement is that for a specified price the petitioner will sell to the defendants four lots of timber— nothing more, nothing less; and while it is agreed that leases on the same shall be made out and delivered to the defendants, neither the term nor the beginning of the term of such leases is expressed. In his work on the Statute of Frauds, §385, Mr. Brown declares that it must appear from the memorandum what is the subject-matter of the defendant’s engagement, and also that “property which is purported to bo bargained for must be so described that it may be identified”; citing as authority a very large number of English and American cases.
It is not necessary, however, to multiply authorities on this point. In order to constitute a valid sale and purchase, there must, of course, be a subject-matter as well as a price. To satisfy the statute'this subject-matter must be described in the •writing. It need not be so described as to be capable of identification by mere reference to the writing, provided the descrip-' tion given makes reference to other conditions capable of explanation; in the latter case there is no want of identity, but the language making the identification may be explained by parol evidence, if it is ambiguous. There is, however, a marked dis-function between explaining an ambiguous description by parol evidence, and admitting parol evidence to supply a description. In the one'case, the property is described in the writing, but
It is further contended that the plaintiff in error has admitted the interpretation of the contract as to matter of description placed upon it by the defendants. That may be, but he makes the question directly that he is not bound by the contract, because it is obnoxious to the statute of frauds. In the case of Hollingshead v. McKenzie, 8 Ga. 457, this court held that where a defendant admitted the parol agreement and yet by his answer insisted upon the benefit of the statute of frauds, he was entitled to it, notwithstanding such admission, citing Story’s Eq. PI. § 763. ‘ The defendants, in their answer, place their right to cut and remove the timber on the land of the petitioner on the written contract. Eor the reasons above given, that contract must be held invalid; it neither gives to the defendants title to the timber, nor the right to have the title vested in them. This being true, they must rely upon something besides their writing, to give them the legal right to this interest in the realty. Whether they can or will do so hereafter is not a matter with which we are now concerned. It is certain that they have no such title, under the case made by the pleadings; and having no right of entry on the land, title to which they admit is in the petitioner, they can not be allowed to cut and remove the timber therefrom, without showing the existence of that right by other means than the contract on which they rely. The court, therefore, erred in refusing the injunction; and the judgment is Reversed.