Sawert v. Lunt
62 A.2d 34
Pa.
1948
Check Treatment

Opinion by

Mr. Justice Jones,

The plaintiffs, a husband and wife, seek by this suit in equity to compel the defendant’s specific performance of a contract for the sale of certain property to the plaintiffs. The defendant filed an answer raising preliminary objections to the bill of complaint on the ground that the written memorandum upon which the plaintiffs rely does not satisfy the requirements of the Statute of Frauds (Act of March 21, 1772, 1 Sm. L. 389, Sec. 1, 33 PS § 1). The learned court below sustained the defendant’s objections and dismissed the bill. This appeal is by the wife plaintiff, her husband and co-plaintiff having died since the suit was begun.

*523 The material writing, in its entirety, is as follows:

“September 19, 1947
“Received of Fred A. Sawert and Bertha J. Sawert Five Hundred and no/100...................Dollars Hand money on account of purchase of 305 S. Negley Ave. At net price of $14,000.00.
[signed] Mrs. C. E. Lunt”

We think that the memorandum of sale satisfies the statute. All that need be done is to translate the general designation of the property into a precise description by metes and bounds which can be readily done under the facts of this case without offense to the statute. In addition to the written memorandum which the defendant’s answer impliedly admits, the bill avers, and the answer likewise admits, that the defendant is the record owner of a house and lot at 305 S. Negley Ave., Pittsburgh, Pa.; that this property was the subject-matter the parties’ agreement of sale evidenced by the memorandum receipt; and that there is a deed of record in the office of the Recorder of Deeds for Allegheny County, Pennsylvania, describing the property by metes and bounds and showing record title thereto to be in the defendant. It clearly appears, therefore, that the defendant actually owned the property in Pittsburgh whose description of record definitely fits the designation used in the memorandum receipt. Undeniably, therefore, the designation, “305 S. Negley Ave.”, identifies a specific property.

In such circumstances, it is not a violation of the statute to supply by parol the record description of the property which the writing of the parties specifically identifies. In Suchan v. Swope, 357 Pa. 16, 20, 53 A. 2d 116, Mr. Justice Horace Stern, speaking for this court, quoted with approval from Peart v. Brice, 152 Pa. 277, 279, 25 A. 537, where it was said that “. ... parol evidence to describe the land intended to be sold is one thing, and parol evidence to apply a written description *524 to land is another and very different thing, and for that purpose is admissible: [citing cases].” See also Howard v. Innes, 253 Pa. 593, 601, 98 A. 761. Once the land is identified, parol evidence is admissible for the purpose of applying to it a more precise description. In the Buchan case, supra, the vendor, in his receipt for hand-money, described the subject-matter of the sale as “my farm”,— a description which was there held to be sufficient to satisfy the Statute of Frauds.- In further justification of the' ruling so made, the opinion points out that Ray (thé vendor) owned only one farm; that the parties well knew what was intended by “my farm”; and, in conclusion, that “The identity of the property is certain .and all that'is necessary is to refer to the deed by which Ray acquired .title in order, purely for conveyancing purposes, to ascertain the metes and bounds.” Nor is it necessary, in order to avoid the inhibition of the statute, “to so describe the land as to avoid the necessity of proof of its identity; .' . . its identification necessarily becomes the subject of certain parol proof”: Shaw v. Cornman, 271 Pa. 260, 262-263, 114 A. 632, which cites Phillips v. Swank, 120 Pa. 76, 85, 13 A. 712, where it was recognized that “the thing [i. e., the land] concerning-which the parties propose to contract may be described in such general terms as to require parol proof to identify the particular subject of the contract.”

It is indisputable that the parties here intended by their contract to deal with respect to the property at 305 S. Negley Ave., Pittsburgh, which the defendant owned. Such being the case, the record of her title in the Recorder’s office of Allegheny County was at once competent to supply both a description of the property by metes and bounds and the municipality of its location, just as in the Buchan ease, supra. And, so, “with a minimum of external evidence, the land [is] found without the possibility of contradiction or uncertainty, and to the exclusion of all other properties”: cf. Shaw v. Cornman, supra, at p. 264.

*525 That the designation of a property by street: and number or other descriptive but general term may sufficient to satisfy the Statute of Frauds seems clear.; As long ago as Flanigen v. City of Philadelphia, 51 Pa. 491, 492 (an action of ejectment), it was recognized that: “In a city having a known system of notation, regulated., by municipal laws, recognised in, the transactions of general business, and acted upon by everyone, the description of. a parcel of ground, or the messuage thereon, by a number is sufficiently definite.” As we have already, seen, in Suchan v. Swope “my farm”, was a sufficient description. Again, in Ranney v. Byers, 219 Pa. 332, 334, 68 A. 971 (concerned with a declaration of trust), “the Byers place” was a sufficient realty description; in Henry v. Black, 210 Pa. 245, 247, 59 A. 1070, “Hotel Duquesne” was the extent of the description of the property in the contract of sale in that case which was specifically enforced; in Ross v. Baker, 72 Pa. 186, 188, the “Fleming farm on French creek” met the statute’s requirements; and, in Smith & Fleek’s, Appeal, 69 Pa. 474, 475, the description, “all that piece bought of Rose by Thomas Smith and Porter Fleek” in the contract of sale satisfied the statute and so supported the plaintiffs’ title in their equity suit against the vendors for waste. See also Fitzpatrick v. Engard, 175 Pa. 393, 402, 34 A. 803, and Andre v. Andre, 123 Pa. Superior Ct. 597, 604, 187 A. 321.

The cases cited by the appellee are readily distinguishable. In Mellon v. Davidson, 123 Pa. 298, 299, 16 A. 431, the description, “a lot of ground fronting about 100 feet on the P. R. R., in the 21st Ward, Pittsburgh, Pa.”, could not actually be.fitted to any lot of ground. along the railroad in the designated ward; and in Weisenberger v. Huebner, 264 Pa. 316, 319, 107 A. 763; the description, “property at 3 & Spruce” was held to be insufficient because the location was- uncertain, i. e.,; “whether it is at the corner of ‘3 & Spruce' and, if it is, at which corner.”

*526 What seems to have bothered the learned court below in the instant case was the fact that the writing does not contain any reference to the municipality or other political subdivision wherein the property is located. But, that omission was not vital. In the Suchan case, supra, where the description was “my farm” no name of any village, town or township appeared in or upon the receipt. In Henry v. Black, supra, not only did the receipt for th'e hand-money for the purchase of the “Hotel Duquesne” not contain the word “Pittsburgh” anywhere, but it did not show the street and number or even the street of the property’s location. In Ranney v. Byers, supra, the location of the property “the Byers place” was inferred from the fact that “New Castle, Pa.” was written in on the date line above the words, “Memoranda and agreement”. Both Fitzpatrick v. Engard, supra, and Andre v. Andre, supra, admit of such a presumption from the presence of the municipal name somewhere on, but outside of the body of, the receipt. However, the presumption is by no means conclusive and, consequently, is incapable of being a sine qua non to the sufficiency of the description as it actually appears in the body of the receipt. The location of the “Fleming farm on French creek” could hardly be inferred from the word “Titusville” written in the receipt for the hand-money ; we may take judicial notice of the fact that Titus-ville is some twenty miles distant from French Creek in Crawford County. Nor could the situs of the tract of pine timberland dealt with in Smith & Fleek’s Appeal, supra, reasonably be inferred from the name of the village, “Little Cooley”, written in on the date line of the hand-money receipt in that case.

In any event, the case of Ross v. Baker, supra, rules the question directly. There, each of five separate receipts for portions of the hand-money (for respective aliquot parts of the whole property) referred to the land as the “Fleming farm on French creek”: The trial judge reserved a point of law (p. 187) as to “Whether the re *527 ceipts [for band-money] are sufficient to pass any title as of tbeir dates . . . .” On this reserved point, tbe lower court later ruled that “Tbe receipts [for band-money] . . . given in evidence, we think are not sufficient to convey to tbe several [purchasers] tbe equitable title to this' land as of tbeir dates. They describe no land by either adjoinings, township or county, and there is no evidence that tbe land was known as tbe Fleming farm, . . .” (emphasis-supplied). On appeal, this.Court reversed, bolding at p. 190, that “In the case before us tbe receipts contain tbe'names of tbe seller and buyer, a description of tbe property, and the amount of tbe purchase-money and its payment. The Fleming farm is identified by Isaac Canfield [one of tbe vendors], and tbe locality on French creek is quite as certain as adjoining tbe river Taff [a reference to a cited English case]. There was, therefore, error in tbe decision of the court on tbe reserved point.”

There is nothing in Heller v. Cochran, 280 Pa. 579, 580, 124 A. 737, to indicate that tbe decision in that case was intended to detract in any way from tbe specific ruling in Ross v. Balcer, as above outlined. In tbe Heller case, tbe band-money receipt evidencing the agreement of sale there involved was as a whole “too vague and indefinite to permit equity to enforce it ... .” From tbe writing it was not even certain, as the opinion of tbe lower court in that case noted, whether tbe descriptive word, “Market”, in tbe receipt was a street, place or what.

Tbe decree is reversed with a procedendo; costs to abide tbe ultimate result.