| New York Court of Chancery | Jul 15, 1834
The bill is for a specific performance of a contract for the sale of lands, entered into between the parties, in March, 1833. The complainants agreed in writing to sell to the defendants forty acres of land, including certain water-rights, on Brasscastle brook or creek, for the sum of fifteen hundred dollars. The bill sets out the land, and alleges that the complainants tendered a deed to the defendants according to the contract, and that, although they had taken possession of the property and cut wood and timber on it, they refused to accept the deed, and pay or secure to pay the money, according to the contract.
Hornbaker has answered, and admits the whole case. Barber has demurred to part of the bill, and answered to the residue. He assigns as cause of demurrer, “ that the said supposed article of agreement, note or memorandum thereof, doth not state in what township, county or state the lands intended or agreed to be conveyed thereby, do lie.” And the only question is, whether by reason of that omission, the description of the premises is so uncertain and vague, as to render the action of this court improper or inexpedient.
It is contended on the part of the demurrant, that as to the locality of the premises, the agreement is altogether indefinite; that-it cannot be understood without calling in and relying upon the aid of parol testimony, which is not admissible under the statute of frauds; that an action could not be maintained on it in a court of law, and therefore a court of equity will not interfere.
I think, however, it would be too strict to bring the present case within it. The omission of the town or county will not necessarily render the description of the property altogether indefinite. It may be sufficiently defined in a variety of ways, without mentioning either. There are many places or streams that are so well known, as to form better marks of designation to property than the names of the county or township would furnish ; and as the only object is reasonable certainty, it is not material in what way the certainty is attained.
The property is described in the article of agreement as forty acres of land, and the water-rights; the line to- commence at a corner to be made in the middle of the road and in the old straight line of Fentoa and Lofter’s surveys, and to run thence along said road to a certain stone on the west side of said road, and south of another old road, and then to run from thence a westerly course, crossing the Brasscastle brook below where the small stream puts in from the meadow, and running on the south side of said creek out near where a certain stake is put up in the middle of the creek. There the corner is to be the middle of the
In this description there is as a guide, in the first place, the Brasscastle brook, which is a stream well known in that part of the country where the parties reside. It is evident from the agreement, that it is a water-course commanding a good head of water. It is a natural object about which there can be no dispute or mistake. Then, again, the line of the property intersects the old line of the Fenton and Lofter’s surveys, and makes that line a part of its boundary. These ancient surveys are in many parts of the country as well understood and known as the lines of townships or counties. They constitute the most notorious and safe boundaries of property, especially wood land, as I take the present to be.
With these designations of locality in the description, (to say nothing of others,) I see no propriety in turning the party out of court on- a demurrer. It should be a very gross case to justify such a course. The authorities do not warrant it. In 9 Co. 46 — the earl of Shrewsbury’s case- — it was contended that the king’s grant of the office of steward of the manors of Mansfield, Bolsover and Horseley, was void for uncertainty, because the county in which the manors were situated was not mentioned ; for it was said, and so the truth was, that the king had divers manors of the same names in several counties; and it cannot be seen what manors he intended to grant; that the intent ought to appear in the grant, and not by collateral averment. But by the court, the grant is certain enough, though the county is omitted.
Tn Jackson v. Clark and al., 7 John. Rep. 217, the property in the deed was distinguished as “Lot No. 1 of the smaller lots
In the case of Barry v. Coombe, 1 Pet. U. S. Rep. 640, the court decreed the specific performance of a contract much more uncertain and imperfect than the present one. Coombe made out a statement of an account between himself and Barry, consisting of various items, amounting to a large sum. In this statement he credits Barry as follows: “ By my purchase of your half E. B. wharf and premises this day, as agreed on between us, $7,578 63.” This paper was signed by Coombe, each party having a copy. On a bill filed for a specific performance, Barry set up the uncertainty of the agreement, and put himself upon the statute of frauds, as the defendant has done here. The court said, that for any thing that appeared on the face of the instrument, E. B. wharf may be as definitive a description of locality as F. street; and then the ambiguity could only arise if it be shown that the bargainor had more than one house in F. street, like the two manors of Dale, put in the old books.
Demurrer overruled.
But courts of equity will enforce the specific performance of a parol agree, merit, when it is fully set forth in tlie bill and confessed by the defendant’s an. swor, though the contract he required by the statute of frauds and perjuries to be in writing: Attorney Gen. v, Day, 1 Vesey, sen. 221; Spurrier v. Fitzgerald, 6 Vesey, 555; Whitchurch v. Bevis, 2 Bro. C. C. 566 ; Cottington v. Fletcher, 2 Atkyns, 156 ; 1 Fonb. Eq. 179, book i. ch. 3, s. 8; 2 Story’s Eq. 57. Courts of equity will also enforce the specific performance within the statute of frauds and perjuries, where there has been a part performance of th® parol agreement! 1 Fonb. Eq. 181, 183, note e; 2 Story’s Eq. 62,