Price v. McKay, 53 N.J. Eq. 588

Emery, V. C.

This is а bill for specific performance of an agreement for the sale of real estate, evidenced by a note оr memorandum signed by the defendant and set out in the bill as follows:

“ J. City Feb. 19th, 94.

“Received from Mrs. F. E. Price fifty dollars ($50) in consideration of the purchasе of a lot on Bramhall Ave. No. 470.

“The price for which is twelve hundred ‍‌‌‌​​‌‌​​​​‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​​​‌​​​‍and seventy-five ($1275).

“Cecilia M. McKay.

“ In case anything should occur I promise that the stable shall be removed, also the privilege of access to my private sewer on property.

“C. M. McKay.”

No date was fixed by this paper for the delivery of the deed, but on the 19th of March, 1894, the complainant offered the balance of the purchasе-money and requested a deed for the premises, which the defendant refused to give, and on the 31st of March, 1894, a formal tender оf the amount was made by complainant to the defendant, and a request made for the delivery of the deed. The defendant again refused to accept the money or deliver the deed, and, on April 3d, 1894, conveyed the premises to the defendant Maxson. The bill charges that this conveyancé is without consideration, and that Maxson held the title to the premises for the use of the defendant McKay, and with full notice of the agreement between complainant and McKay. The defendant Maxson has answered, but the defendant McKay demurs to the bill. The principal cause of demurrer relied on at the argument, and in the briefs of counsel, is inсluded in the first cause assigned, viz., that the agreement set out does not describe the lands with sufficient ‍‌‌‌​​‌‌​​​​‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​​​‌​​​‍certainty to.satisfy the requirements of the statute of fraudá. The objection is that the description of the lands as “a lot on Bramhall avenue No. 470” is too indefinite, unless the city or town is indicated. It is urged •that the place named at the top of the receipt must be construed to apply only tо the place of the receipt of the money, and cannot, by parol evidence, be shown to be applicable to the location of the lands. This is contrary to the rule laid down in the Massachusetts cases where it is held that the placе of the date of a contract to convey real estate affords a presumption that the estate is situated in that рlace, but that this presumption is only a presumption of fact and may be rebutted by oral evidence locating the real estate elsewhere. Mead v. Parker, 115 Mass. 413. The bill in this case alleges that the lands are located in Jersey City, and if parol proof is admissible under thе doctrine in Mead v. Parker, this allegation of. the bill, admitted by the demurrer, would dispose of this objection. But I think that no decision is necessary upon the application of this rule, for, independent of any aid from external evidence, and treating the date of the receipt to be in law applicable only to the place of receipt of the money, I think the writing itself indicates the lot sold with suffiсient certainty to satisfy the statute and to require specific performance. In the first place, the receipt indicаtes the vendor of the property — the defendant — and the lot purchased is, therefore, a lot owned by the defendant. Next,. it is a lot No. 470 Bramhall avenue, owned by her, and these two marks are together sufficient to locate the property. Additional mаrks are furnished, if necessary, by the references in the agreement at the bottom of the receipt to a stable and also ‍‌‌‌​​‌‌​​​​‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​​​‌​​​‍to a private sewer owned by the defendant. With these four marks or indications appearing upon the face of the paper itself, I think sufficient appears to indicate the property without reference to the place of date of the paper.

If the defendant had devised the property by this description in her will, it seems to me to be impossible to say thаt the lot would not have passed by the devise. Sir George Jessel, in Shardlow v. Cotterell, 20 Ch. Div. 90 (Court of Appeals, 1881), lays this down as a legitimate test of sufficiency of description undеr the English statute o’f frauds, and it seems to be a sound and safe rule to be applied under our statute.

That the agreement required by оur statute may sufficiently ‍‌‌‌​​‌‌​​​​‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​​​‌​​​‍appear in a receipt signed by the defendant, is settled in Lewis-, Administrator, v. Reichey, 12 C. E. Gr. 240, and that the description is not indefinite by reasоn of the mere omission to state the township or county in which the lands lie, is also settled in this court. Robeson v. Hornbaker, 2 Gr. Ch. 60.

In Ross v. Allen, 45 Kan. 231, relied on by the defendant, the cоurt held that where a receipt was dated “Leavenworth, March 19th, 1887,” and the property was referred to therein as “Numbers 617 and 619 Delaware street, Block 74, city property,” the memorandum was defective in not giving the location in any state, county or city. This receipt was not, however, signed either by the owner, or by any person for the owner, and was, on this account, held invalid, and on thе question of location the court says (at p. 574) • “ If the name of the owner or vendor had been given, it would have aided in the identificаtion of the property, but her name nowhere appears in the writing.” This element for identification is present in ‍‌‌‌​​‌‌​​​​‌​​‌​‌‌​‌​​‌‌​‌​​​‌‌‌‌‌​​‌‌‌‌‌​​​‌​​​‍the memorandum hеre signed by the defendant herself, and which must, therefore, be taken as a sufficient declaration that the contract refers tо the No. 470 Bramhall avenue, of which she is the owner.

This cause of demurrer is, therefore, insufficient.

The second cause of demurrer is based upon the theory that the duty which the dеfendant is to perform, in relation to the stable and sewer, is so indefinitely expressed in the memorandum that the court will not decree performance of it. The answer to this contention is, that the complainant, by her bill, seeks only the performance of the agreement to convey the lot, without asking for any action or decree of the court with reference to the stable or sewer. The agreement to convey, if definite'as to the lot, cannot be made ineffective by reason of the indеfiniteness of other provisions relating to acts or duties of the defendant which are not insisted on by the complainant. Defendants’ equities, either to resist performance or to obtain terms, on account of these provisions, if such equities exist at all, must be made to appear by answer, and cannot, on bill and demurrer, be held to be so certain as to invalidate the clear agreement to convey.

The other causes for demurrer were practically abandoned at the hearing, and, in view of the allegations of the bill, are so manifestly unsubstantial that none of them can be sustained.

I advise that the demurrer be overruled, with costs.

Case Details

Case Name: Price v. McKay

Court Name: New Jersey Court of Chancery

Date Published: May 15, 1895

Citation: 53 N.J. Eq. 588

Court Abbreviation: N.J. Ct. of Ch.