45 Ark. 17 | Ark. | 1885
The Railway Company sued Beidler in ejectment for eighty acres of land. He claimed to have bought of the Company fifty-three 75-100 acres, parcel of the tract described in the complaint, paying one-fourth in cash and giving his notes for the deferred payments. He made his answer a cross-bill, tendered the residue of the purchase money and demanded a specific performance of the agreement. The cause was transferred to equity and for defenses the Company set up the Statute of Frauds and insisted that the contract upon which Beidler relied was obtained by means of false and fraudulent representations, and that as soon as the deception which had been practiced was discovered, it had offered to refund Beidler’s money and had destroyed his notes. The decree was that the Company should execute to Beidler a good and sufficient deed with covenants of warranty, for the premises mentioned in the cross-bill, upon the completion of his payments.
The following instruments were put in evidence by Beidler:
“St. Louis, Iron Mountain & Southern Railway Co. ^ “Land Department. > “Little Rock, Ark., Dec. 26, 1877. J
“Contract No. 2,444.
“ Received of Henry M. Beidler, of Texarkana, Miller “ County, Ark., the sum of two hundred and one ®060' dollars, on “ account of purchase money of land of this company, as ex- “ pressed in his contract, numbered as above.
“ Thomas Essex,
“$201.56. Land Commissioner.
“ This receipt is given to be held by the party until the contract be transmitted to New York for signature by the Trus- “ tees, and received back at this office.”
“St. Louis, Iron Mountain & Southern Railway,"] “ Arkansas Division, | “ Formerly Cairo & Fulton Railroad, ¡> “ Land Department. “Little Rock, Ark., December 26, 1877.^
“This is to certify, that H. M. Beidler, of Texarkana, Miller “ county, Arkansas, has purchased from St. Louis, Iron Moun- “ tain & Southern Railway, the following tracts of land:
“All of N. E. of S. E., Sec. 30, T. 15 S., R. 28 W., except “ 5 acres in S. W. corner of said forty, reserved for company’s “ steam pump, ’ containing an area of 35 acres; also that part “ of the N. W. of S. E., Sec. 30, T. 15 S., R. 28 W., outside of “ lands reserved for company purposes, containing an area of “18 acres, as set forth in contract between said Beidler and “ St. L., I. M. & So. Ry. Co.
“ Number 2,444.
“Thomas Essex, Land Commissioner.”
These, memoranda are insufficient of themselves to satisfy the requirements of the Statute. They do not show the terms and conditions of the sale, the price to be paid' and the time within which payment is to be made. They refer, however, to a certain contract numbered 2,444, which was produced by the Company and which proved to be nothing more than a printed form of articles of agreement in use by the Company for sales of land, signed by Beidler alone, and with none of the blanks filled; so that it amounts to no more than a sheet of blank paper with Beidler’s signature at the end. But attached to this blank form was the following memorandum in pencil:
“ Sale suspended.
“ H. M. Beidler, Texarkana, Ark. Con. No. 2,444. Part of N. 1-2 of S. E., Sec. 30-15-28; 53.75$ at 15, outside of reservation, Miller county; 1-4 cash, balance in 1, 2 and 3 years. Reserve perpetual right-of-way for pipe from pump to tank.”
And the company also produced and filed with said blank form the following, which we take to be an excerpt from its book of sales:
ST. LOUIS, IRON MOUNTAIN & SOUTHERN R’Y.
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The mutual relation of these several writings appears on their face. Manifestly, all of them were made in the course of one and the same transaction. They will be read together, therefore, and if, with the aid of the light thrown by each upon the other, a court can, without resorting to extrinsic evidence, ascertain and identify the parties to the. contract, the subject matter and the terms and conditions of the sale, specific execution will be decreed. It matters not what may have been the immediate purpose for which some of the writings may have been prepared, or that one of them may be unsigned. All that the statute requires is written evidence from which the whole contract can be made out. Pomeroy on Specific Performance, Secs. 82-4; Browne on the Statute of Frauds, Secs. 346, 349; 1 Reed, do, Secs. 340, 351; 1 Gr. Ev., Sec. 268; Allen v. Bennett, 3 Taunton, 168; Johnson v. Dorgson, 2 M. & W., 653; Sarl v. Bourdillon, 1 C. B. N. S., 188, (87 E. C. L. R.); Newell v. Radford, L. R., 3 C., p. 52; Long v. Millan, 4 C. P. Div., 450; S. C. 30, Moak Eng. Rep., 659; Barry v. Coombe, 1 Peters, 640; Salmon Fall Manf’g Co. v. Goddard, 14 How, 446; Beckwith v. Talbot, 95 U. S., 289; Raubitschek v. Black, 80 N. Y., 478.
^ *s> however, urged that the lands are not sufficiently described.' The description of the first tract is complete in itself. It calls for a block of forty acres, described according to the legal subdivisions upon the public surveys, except five acres in the southwest corner. The exception means five acres laid off in a square. Walsh v. Ringen, 2 Hammond, (Ohio), 328; S. C. 19 Am. Dec., 555; Cunningham’s Lessee v. Harper, Wright (Ohio), 366; Hay's Lessee v. Storrs, Ib. 711; Baybee v. Hageman, 66 Ill., 519.
The description of the other tract presents the case of a latent ambiguity which is capable of being removed by parol proof. The land intended was fully identified, the sale having been made with reference to a previous survey and plat, in which the boundaries were established. Cate v. Stewart, 28 Ark., 146; Swayne v. Vance, Ib., 282; Dorr v. School District, 40 Id., 237.
Upon the other branch of the case—the alleged fraud of Beidler in procuring this sale—the evidence tended to show that he saw the president of the road, at Texarkana, in November, 1877, told him that he wished to buy this land, which lay near the Company’s depot at Texarkana, on the south side of the track. The president inquired of an official connected with the operating department ol the railway service, whether he had sent up the maps showing what lands the Company desired to reserve from sale at that point; and receiving an answer in the affirmative, intimated that the land was in the market and referred Beidler to the land commissioner.
Shortly afterwards Beidler came to Little Rock and in company with a friend called at the commissioner’s office and applied to purchase the land. The commissioner says he explained to Beidler that he could not sell any part of this tract until the operating department had fixed the amount of the reservation that was required for railroad purposes. But Beidler and his companion swore that the commissioner told Beidler he could have the land; that he did not know, however, how many acres it contained, and a survey would be necessary; and .that the parties agreed upon one Hogane to survey it; Beidler returned to Texarkana, and upon inquiry found that Hogane had already made a survey, and from him he procured a plat, which showed a reservation of only fifty feet from the main track south for right of way.
In December following Beidler met the commissioner in St. Louis and exhibited the plat. The commissioner examined it and expressed his opinion that a mere right of way through the land was not a sufficient reservation. He asked if the division superintendent was cognizant of the making of the map, and was informed that he had been present when the lines were run. The commissioner finally said he would be satisfied if the division superintendent would certify in writing to the correctness of the lines as shown on the plat.
Beidler, not having a personal acquaintance with the division superintendent, requested Hogane, the surveyor, to lay the map before him and have him examine it, and if found correct, to.so certify. This was done, and the division superintendent indorsed on the map, over his official signature, “This is correct.”
On the 19th of December, Beidler called at the commissioner’s office in Little Rock, for the purpose of making the purchase, but not finding him in, left with his chief clerk the plat certified by the division superintendent to be correct, and $200 in money to be applied on the proposed purchase when the terms were settled. Under date of December 24th, the commissioner writes Beidler that he has the certified plat; that he considered the land worth $16 per acre, and wishes to hear from him soon. In response to this, Beidler came in person, and on the 26th of December the treaty of purchase was concluded.
On the same day, but after the writings had been drawn ánd delivered, the commissioner and the'division superintendent discussed the matter and came to the conclusion that too much of the land had been sold off, and that the Company might hereafter need some of it to accommodate future expansions of its business. Prompt measures of retraction were taken, but the matter had proceeded too far to allow of any jus deliberandi or locus poenitentice.
In all this we see nothing that comes up to' the legal idea of fraud. No fiduciary relation existed between the parties, and the means of information were equally accessible to both. All that can be said is that Beidler seems to have taken advantage of the want of understanding between the land department and the operating department of the Railway. But we are not satisfied that he actively and knowingly contributed to produce that misunderstanding. His conduct in procuring the certification of the map is not irreconcilable with good faith and fair dealing. It is true the division superintendent was not aware at the time, of the purpose for which his signature was wanted, nor even that a negotiation for purchase was pending. But we are not prepared to say that it was Beidler’s duty to inform him. He had never undertaken to do this. And the land commissioner would not have been misled if he had made due inquiry on the subject.
There is some slight evidence in the record that the land was subject to*a deed of trust made by the Company, the legal title being outstanding in the Union Trust Company, of New York, and that it was customary to send forward these contracts to have the trustee join in the sales. If the land is mortgaged, still the Company has an equity of redemption which it may sell and convey. And if Beidler chooses to accept the land in that condition, certainly the Company has no cause to complain.
Let the decree be affirmed.
