Munsell v. Loree

| Mich. | Oct 11, 1870

Graves, J.

The bill in this case was filed for the specific performance of a parol contract for the conveyance of land. The bill states that on or about the 15th day of June, 1852, the complainant purchased of the defendant, Loree, for the sum of $35, a parcel of land in Iosco, Livingston county, described as follows: Commencing at a point thirty-four rods south of the northeast corner of section twenty-two, on the section line, and running south on said section line fourteen rods; thence west eighty rods; thence north fourteen rods; thence east to the place of beginning, containing seven acres. The bill further states that complainant paid Loree the consideration of $35 at the time of the purchase; that he took immediate possession of the land, and has had the exclusive possession thereof ever since, under and by virtue of said purchase, and has made some improvements thereon; that at the time of the purchase Loree agreed to convey by deed to complainant a good and unincumbered title in fee simple when he should be thereafter requested so to do; that complainant has often requested Loree to convey according to the agreement, which the latter has, from time to time, promised to do; that Loree nevertheless continued to put off the conveyance upon various pretenses until the 22d of December, 1866, when he bargained and conveyed said land to the defendant, Green; that Green, at the time of the conveyance to him, had notice of complainant’s rights, and knew that complainant was in possession.

Both the defendants answered and denied all the material facts stated in the bill, and the Court below decreed performance.

The complainant, and defendant Loree, were both exam'ined as witnesses, and the substance of complainant’s testimony is as follows: He stated that he owned a strip of land across the north end of the east half of the northeast quarter of section twenty-two, in Iosco, containing seventeen acres, and held a note against Loree, dated January 1, 1849, and payable in October of that year, for $75 and interest, on which $50 had been paid about a year and a quarter after the date of the note; that he agreed verbally with Loree, in the summer of 1852, to buy a strip of land running across the eighty-acre lot next south of the seventeen-acre parcel, and to contain thirteen acres, at. $5 per acre; that the balance of the seventy-five dollar note and six bushels of wheat delivered to Loree were to apply on the purchase, and made about .$41; that subsequently it was agreed that instead of the whole thirteen acres, a strip next to the seventeen-acre parcel, and containing so much land as, at $5 per acre, had been paid for by the balance on the note and the six bushels of wheat, should be conveyed to him. He also stated that there was no fence between the land in question, which was covered with timber, and the land of Loree, and that the only way in which lie took possession was by cutting some timber and paying some of the taxes. He further- stated that he had retained the seventy-five dollar note. The defendant, Loree, denied that he sold complainant thirteen acres or seven acres, but stated that he offered to sell him thirteen acres, and complainant refused to purchase that quantity, yet informed Loree that he would buy five acres; that he, Loree, then told him that he could have five acres, and that he thinks the price paid was six dollars per acre. The defendant farther testified that he never gave complainant possession; that the latter never paid or offered to pay anything on the land, and that he, defendant, never received any wheat on the land; that he, Loree, had a set-off against the balance of the seventy-five dollar note nearly or quite sufficient to satisfy it, and that complainant Avas to let him, Loree, have the note and pay the balance required for the land; that complainant never tendered the note or offered to pay for the land. The residue of the testimony is very indefinite and unsatisfactory on the material points, ánd adds nothing of consequence to those portions of complainant’s testimony which relate to the terms of the contract, the description of the land, performance by complainant, and matters conducing to refer acts of possession to the agreement.

It seems evident enough that the complainant and Loree talked more or le.ss about a trade for a parcel of land next south of the seventeen-acre parcel mentioned by complainant in his testimony, but Avithout reaching in express terms any settled and specific understanding on the ■subject. It is probable that complainant was led by appearances, and vague or general expressions, to suppose that some sort of an agreement subsisted betxveen himself and Loree under which he was entitled to call for a conveyance. But whatever may have been, tacitly understood, or assumed or imagined, we are satisfied on looking at the proofs that the objections to a decree for complainant are insuperable.

So far as the evidence conduces to show that the minds of the parties came together on any terms of a contract, it points to a very different contract 'from that set forth in the bill, and if We rest upon the complainant’s proofs, which alone refer to the subject, it will be seen that they not only fail to define the premises as described in the bill, but fail to define them in any manner which would enable the Court to specify them in a decree, or identify them in any way. Under the evidence given by complainant as a witness, the amount of land, called for by the agreement, he undertakes to prove, is indeterminate, since according to his version he was to.have so much as an uncertain and unascertained sum wofuld buy at five dollars per acre, and that circumstance of itself would make it impossible for the Court to ascertain the bounds. The evidence for complainant relating to his possession is extremely equivocal and unsatisfactory. The premises not being identified by the evidence, it is not quite safe to refer the acts intended to show possession to the actual parcel which the supposed agreement would cover. But if otherwise, the evidence leaves it uncertain whether the cutting of timber, etc., by complainant, was mutually known and accepted by the parties as done in virtue of a contract of sale.

We consider it unnecessary to notice the evidence at greater length or with more particularity.

. The bill is clearly unsupported by the proofs, and the decree below must be reversed, and the bill be dismissed with costs.

The other Justices concurred.