Guy v. Barnes, 29 Ind. 103

Guy v. Barnes

29 Ind. 103 | Ind. | 1867

Gregory, J.

When this case was here before, (24 Ind. 345,) we held that the complaint was good. If, as is now contended by the' appellant, the lease is void for uncertainty in the description of the demised premises, then our previous ruling is wrong, for the complaint set out a copy of the lease.

We have examined the authorities cited by the appellant. They do not sustain the position taken by him. It is a maxim of the law that “that is sufficiently certain which can be made certain.” The parties to the léase are described as resident's of Morgan county, in this State. The *104proof shows that the lessee took possession of the land intended to be leased; that, by actual measurements, the land answers the description as to dhections and distances from the points named, and that it is in the west end of a tract of one hundred and twenty acres.

This court said, in the previous opinion, that “if, following the directions and distances indicated in the lease, sixty acres of land were found, being the west end of a one hundred and twenty acre lot, it would have been identified' as the land mentioned in the lease.” This was done. We are now asked to reverse the judgment because the court below followed the directions of this court. We are entirely satisfied with our previous ruling.

In Colerick et al. v. Hooper, 3 Ind. 316, the language of the agreement under consideration was as follows: “I have this day sold my lot to A. B., on the plat in the town of South Bend; on the plat of said town on the river bank. I have received value, and will make the deed as soon as convenient. August 11,1835. (Signed,) C. D.

“Held, that parol evidence was admissible to identify the particular lot intended to be conveyed, and that the contract was, therefore, sufficiently certain to be the foundation of a bill for specific performance.”

“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 clearly to 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 complaint.” Torr et al. v. Torr, 20 Ind. 118.

In Dingman v. Kelly, 7 Ind. 718, there was nothing in the description which indicated the particular tract of land intended to be leased. In Howell et al. v. Zerbee, 26 Ind. 214, there was nothing to indicate on what part of lot 3, section *10586, township 33, range 4 west, the five acres were situate. But in the ease under consideration, the sixty acres demised were described as being the west end of one hundred and twenty acres, and being sixty acres of land north of the state road leading from Martinsville to Gosport, three-quarters of a mile north of Anderson Thompson’s residence. The principle drawn from the authorities seems to be this: that a description, in a lease or contract required to be in writing under the statute of frauds, cannot be supplied by oral evidence, but that an ambiguity may be explained and the premises identified.

C. F. McNutt and A. Ennis, for appellant. W. li- Hanison and W. S. Shirley, for appellee.

The judgment is affirmed, with costs.