70 W. Va. 52 | W. Va. | 1911
Slielton L. Eeger, trastee, brought suit in' the circuit court of Pocahontas county against William M. McAllister and others to compel specific performance of a "contract for the sale of land, and from a final decree rendered in favor of plaintiff, on the 8th of October, 1908, defendant, McAllister, has appealed.
On the 8th of July, 1899, McAllister agreed in writing to sell and convey to Eeger, trustee, two adjoining parcels of land at the price of $4.50 per acre, $500 of which was paid at the date of the contract, and the balance to be paid when the deed should be delivered. These parcels of land were to be surveyed out of larger tracts which McAllister owned, and, when surveyed, would constitute one contiguous body, or tract, of land. The agreement stipulated that McAllister should have “the lands surveyed at liis own cost and charge, at the earliest practicable date, by B. M. Yeager, Uriah Bird or some other competent surveyor, to be agreed upon by the said parties.” He was to give Eeger ten days notice of the time when the surveying would be done-A number of dates were agreed upon for making the survey, but in each instance, before the time arrived, either something occurred which made it inconvenient for Mr. Eeger to attend, or -the surveyor could not then do the work. Mr. Eeger admits that the delay was chiefly on his own account. After several attempts to fix a date when it would suit the convenience of Mr. Eeger to be present, he finally, on the 11th of October, 1899, wrote from Elkins, West Virginia, to Mr. McAllister at Warm Springs, Virginia, the following letter, viz: “I wired Mr. Bird to arrange with you as to a date to survey your land, I want it closed up, and I hope you and he can arrange dates satisfactory to both. I am now so I can meet you at any time after next week.” On the 10th or 11th of October, 1899, Mr. Eeger also wired Mr. Bird at Marlinton, West Virginia, to arrange a date with Mr. McAllister, and to go on and do the surveying, whether he (Eeger) was there or not. Pursuant to these directions, Mc-Allister and Bird went upon the land, about the 20th of October, 1899, and Bird says he did the surveying according to the contract, as he understood it. Mr. Eeger was not present, but he w^ent upon the land a fewr days afterwards, within a week after-wards, but he sajrs he did not then examine the lines that had
In addition to his claim of complete performance, McAllister asserts that the boundaries of the tracts- of land are not described in the agreement with sufficient definiteness to enable a court to specifically enforce it.
Certainty in description of land agreed to be conveyed, is an essential prerequisite to specific performance. Mathews v. Jarrett, 20 W. Va. 415. The description of the land which the bill seeks to have conveyed, is given in the contract of sale as follows, viz.: “Also the following described additional tract or parcel of land, the quantity of which cannot now be estimated, adjoining the said first mentioned tract; and adjoining the said Bruce & Chumley 713 acre tract, and adjoining the D. W. Hile and others 2514 acre tract; the lines of said last mentioned tract, are to be run, so as to include all the pine timber off the upper end of said tract, on the North West sidé of said Crooked Fork, running with the lines of the said Bruce & Chumley tract; and the D. W. Hile and others tract; and so as to exclude all the land that is heavily timbered with locust, cherry, and other hardwood, that is
Counsel for appellee invokes the equity maxim, id cerium esi quod cerium reddi potest, and insists that the land can be identified by the above description. There is no doubt that a boundary of land could be surveyed which would coincide with that description. But it is equally certain that it might be laid off by an indefinite number of different boundary lines, and each separate manner of laying it off would fit, in a general way, the description of the boundary named in the contract. That is. what makes the contract indefinite as to boundary lines. The only facts stated in the agreement to fix definite boundary lines, on one side of the tract-, are, (1) that the land is on the North East side of Crooked Fork, (2) that the pine timber must predonminate on it, and (3) that the land on which the hardwoods predominate is to be excluded. That the first fact is too uncertain, is too patent to merit discussion. Crooked Fork is not the boundary line, and the contract does not say how far the boundary lines are to be located from the stream. The second and third facts are so indefinite as description of boundary lines, that no two. surveyors, each working independently of the other, would lay the lines in the same place. This is verified by the fact that Bird, the surveyor mutually agreed on by the partie's to lay off the lines, ran them in one place, and Taylor, the surveyor later employed b)^ Beger, ran them in quite a different place. The bill does not charge McAllister with fraud of any kind, and it appears from the evidence that Bird ran the lines by the agreement, as he interpreted it, and that he was not instructed by McAllister, otherwise than to follow the contract.
The element of uncertainty as to where- the lines should be located, is further complicated by the fact that the pine timber is not found on the land in a continuous body, but grows in patches, the pine predominating in some places, and the hardwoods in other places. The two varieties of timber shade off gradually into each other, and in some places it is difficult to tell which
Reger bought the laird as agent for an undisclosed principal, and the rights of his principal can rise no higher than his own, so far as they affect the vendor. The principal, now most vitally interested, did not become known to McAllister until after this suit was brought.
The decree will be reversed, and a decree entered here dismissing plaintiff’s bill.
Reversed and Bill Dismissed.