Thе bilí is one for specific performance of a contract for the sale of land, having been filed by the vendee, Mitchell, against his vendors, Lovett and Rainey, and Meyer Bros., who were sub-purchasers under them, declining to recognize their contract of sale with the complainant.
There can be little or no doubt of the fact, that the description of the land agreed to be conveyed, as set out in the written agreement signed by thе defendants, Lovett and Rainey, is void for uncertainty, standing alone and unaided by other and extraneous evidence identifying the subject-matter of the sale. This description is simply “ sixty acres of land, viz., fifty acres Comida and Cone bottom; also, ten acres hill-side woodland [adjjoining the Mitchell tract.”.—Thompson v. Gordon,
The bill, however, alleges that, pursuant to the terms of the agreement, the particular sixty acres of land intended to be sold and conveyed was pоinted out and designated by the parties, and that the complainant, Mitchell, w&s placed in possession of it, having done what was legally tantamount to the full payment of the purchase-money. Whether an ambiguity of this nature can be removed by oral evidence of surrounding facts, showing the situation and circumstances of the contracting parties, and serving to identify the subject-matter of sale, is a question in regard to which the authorities are greatly conflicting.—Thompson v. Gordon, supra. The general rule, everywhere recognized, is, that mere verbal declarations as to what was intended, are not admissible in explanation of the terms of the writing itself. A just exception to this rule, however, is found in parol evidence going to the identification of the subject-matter, a principle which seems to have been much favored by the past decisions of this court.
In Chambers v. Ringstaff,
The case of Ellis v. Burden,
The case of Mead v. Parker (
The evidence shows, in the case at bar, that the complainant was placed in possession of sixty acres of land, under the written agreement to convey, a description of which is in accordance with the more general one given in the writing itself. This
The statute of fraud has no room for operation in this case. The complainant was possessed of а valuable right in his accepted bid for the tract of land purchased by him at auction sale from the administrator of Saltmarsh’s estate. This tract included the sixty acres here claimed. The defendants, Lovett and Rainey, recognized not only the lеgal validity and binding force of the bid, but also its pecuniary value, and by this admission induced the complainant to stand aside and permit them to b& placed in his shoes. This the complainant did, and thus they reaped the fruits of complainants’ confidence induced by their own conduct. The administrator was the only party who could interpose the defense of the statute of frauds. He waived this objection, and, recognizing the validity of the sale, as well as the transfer of the cоmplainants’ bid, executed a deed to Rainey, which was done with Lovett’s consent. Under this state of facts, Lovett and Rainey were estopped from denying the validity of the sale, or to assert that it was void under the statute of frauds. Having securеd a valuable right by this admission, upon the faith of which complainant was induced to act to his prejudice, they and their privies in estate, Meyer Brothers, must now stand by the admission, whether it be true or false.
It is manifest that when the defendаnts, Meyer Brothers, purchased from Rainey the entire tract of land, described in the pleadings as tract “ H,” and containing about eight hundred and forty acres, they took it subject to any existing equity in favor of the complainant, Mitсhell, of which they had notice, actual or constructive. The rule is, that when specific performance of a contract would be decreed between the original parties to the instrument, it will also be decrеed between all persons claiming by privity under them, unless there be some intervening equity to prevent. A purchaser with notice stands in the shoes of his vendor, and holds his acquired title as a trustee, subject to pre-existing equities or incumbrances.—Sawyers v. Baker,
Thе proof is perfectly satisfactory to our mind that Meyer Brothers had notice of complainant’s rights, both actual and constructive, before their purchase of these lands. The complainant was in actual рossession of the sixty acre tract in controversy under his contract for purchase, and this fact operated
We can discover no error in the refusal of the chancellor to suppress the deposition of the complainant. ¥e see nothing in his answers to the various interrogatories which evinces any effort to evade the disclosure of facts within his knowledge. Ail of the questions propounded to him seem to have received answers fairly and substantially responsive, cоnsidering the comparative intelligence of the complainant, as a witness. Buckley v. Cunningham,
It is unnecessary to consider the failure of the chancellor to rule on the various exceptions taken by appellants to the testimony. If this could be regarded as error, it is error without injury, in as much as the decree as to these particular matters can be sustained by other testimony in the record, to which no’ exception is, or can be taken.
Thеre is one exception taken to the admission of testimony, however, which should have been sustained. The written agreement sought to be enforced was attested by several subscribing witnesses, and its execution is directly and not incidentally drawn in question. As against the defendants, Lovett and Rainey, who signed it, the statute renders it admissible evidence without any proof of execution, unless such execution is denied by sworn plea,—Code, 1876, § 3036 ; Hooper v. Strahan,
For .this error the decree of the chancellor must be reversed.
There is, moreover, a variance between the allegations of the bill аnd the proof, which seems to us fatal. This variance relates to the description of the land agreed to be conveyed. The description in the -written agreement, as we have seen, is void for uncertainty, at least, without the aid of parol identification. This uncertainty is not obviated by any superadded description in the bill, although there is a general averment that the
The decree of the chancellor is reversed, and the cause remanded for further proceedings, should the complainant see fit to obviate the variance by an amendment of his bill.