Freeburgh v. Lamoureux, 85 P. 1054

85 P. 1054 | Wyo. | 1906

Beard, Justice.

This action was commenced in the District Comí of Fremont County by Jules Lamoureux, one of the defendants in error, against Louis Poire and the plaintiff in error, Philo-mine Freeburgh, to set aside a deed from Poire to Freeburgh of the west one-half of lot seven in block twenty-two of the original townsite of Lander in the town of Lander, Fremont County, Wyoming; and to enforce the specific performance of an alleg-ed contract for the conveyance of said property to Lamoureux by Poire.

The petition alleges that Poire, being- the owner of the premises ábove described, did on the 1st day of September, 1885, make an agreement with Lamoureux whereby Lamou-reux “promised in consideration of the sum of five dollars and other valuable consideration, to-wit: oné lot of land in said town of Lander, to be selected by defendant Poire from the lands of plaintiff in said town and to be conveyed to him, the said Louis Poire, by plaintiff, to convey said real estate and property to plaintiff, Jules Lamoureux, by good and sufficient warranty deed.” That Lamoureaux went into possession of the half lot under the contract, has ever since been in possession and has made valuable improvements thereon with the knowledge and consent of Poire, and has paid the taxes thereon; that he has demanded a deed from Poire for the property, which he has neglected and refused to execute, and that he has at all times been ready and willing to perform his part of said contract. The petition then alleges, that “Poire fraudulently pretends that he has sold and conveyed said premises to the defendant, Philo-mine Freeburgh, on a valuable consideration of $50.00, but plaintiff avers that said defendant Philomine Freeburgh well knew of all of the rights of plaintiff in and to said premises before and at the time she received said conveyance and so fraudulently paid her money thereon, if any was paid by her.” The prayer of the petition is, that the deed from Poire to Freeburgh be decreed to be void and be cancelled of record and that Poire be required to convey the half lot to Lamoureux.

A general demurrer to the petition was overruled and the defendants filed separate answers, Poire denying the contract and alleging that Lamoureux was in possession under a verbal contract that he might erect a building on the lot and use it for a period not to exceed five years. Freeburgh pleaded that she was an innocent purchaser. The cause was tried to the court and a decree entered cancelling the deed from Poire to Freeburgh and requiring Poire to convey to Lamoureux. After the decree was entered Poire died and the action was revived against the administrator qf his estate. The bill of exceptions having been stricken from the record (12 Wyo., 41; 73 Pac., 545), the case stands upon the question of the sufficiency of the petition to support the decree. A number of objections to the sufficiency of the petition have been presented by counsel, but it will not be necessary to consider all of them.

It is contended that the decree is unwarranted and inequitable in that it does not enforce the whole contract and does not require Lamoureux to perform his part of the contract. If the contract is such a one as a court of equity should require to be specifically performed at all, the decre'e should have provided for its perforniance in its entirety, as nothing is shown to render its enforcement inequitable or impossible. “The decree, it has been held, must bind all the parties, for a decree of specific performance against the defendant is erroneous unless it requires of the plaintiff the performance of his share of the obligations.” (26 Enc. Law, 65, and 20 Enc. P. & P., 496, and cases cited in notes.) The fact that Poire had neglected to select the lot was not a good reason why-the obligations to be performed by plaintiff should not have been required. Poire should have been required to make the selection within a time to be fixed by the court, that being, a condition precedent to the duty of Lamoureux to convey, and upon the selection being made, the decree should have required Lamoureux to convey the lot. so selected to him; and it should also have required Lamoureux to pay the portion of the consideration" which he alleges in his petition he was to pay in money. These were at least concurrent conditions to be complied with by Lamoureux upon a conveyance of the half lot to him by Poire. Eor this reason alone the decree as entered by the District Court is inequitable and erroneous.

So far we have treated the contract as one that could be required to be specifically performed. Counsel for the plaintiff in error contends that this cannot be done, because the lot of land to be conveyed to Poire is not described with sufficient^ertainty to be capable of identification. We have quoted the description as contained in the petition in the first part of this opinion, and it contains nothing from which the quantity of land to be selected by Poire or the dimensions of the lot can be determined. It is argued, however, that the description as given is sufficient because Poire had the right under the contract to select the lot and that by such selection it would become certain; and that the rule that, “that is certain that can be made certain,” applies. But the difficulty here is not in applying a description which is sufficiently definite to the lands of Lamoureux, but it is in the description itself. If the dimensions of the lot or the quantity of land to be selected had been stated in the contract and all that remained to be done to identify the lot was to apply the description-to such part of the lands of Lamoureux as Poire should select, that could be done and the land to be conveyed definitely determined. But in this contract, as it is stated in the petition, the dimensions of the lot are not mentioned, nor is reference made therein to 'any other fact from which they can be ascertained. To warrant a court of equity in requiring the specific performance of a contract,. the contract “must be so certain that the court can require to be done the specific thing agreed to be done.” (Godschalk v. Fulmer, 176 Ill., 64.) And where the contract is for the conveyance of land the description “must be sufficient to fix and comprehend the property which is the subject of -the transaction, so that with the assistance of external evidence, the description, without being contradicted or added to, can be connected with and applied to the very property intended and to the exclusion of all other property.” (Ryan v. U. S., 136 U. S., 68.) But external evidence is inadmissible for the double purpose of describing the land and then applying the description. (Halsel v. Renfrow, 14 Okla., 674, and cases there cited.)

Tested by these rules, the description contained in this' contract is too uncertain and indefinite to sustain a decree for specific performance. Whether the contract as shown by the evidence introduced at the trial was more definite in any particular than the statement of it contained in the petition, we cannot determine, as the bill of exceptions has been stricken from the record. • We must assume that the proof was no more specific than the statements of the petition, and cannot, therefore, modify the decree as herein indicated.

The judgment of the District Court is reversed and the case remanded for such proceedings as may be deemed proper upon the record.

The plaintiff in error will recover her.costs in this court, with the exception of those connected with the bill of exceptions and the proceedings herein in the striking of the bill from the record. The costs growing out of the motion to strike the bill from the record will be taxed to the plaintiff in error. Reversed.

Potter, C. J., and Scott, J., concur.