Opinion by
These are proceedings in equity to obtain the specific performance of a contract for the sale of a farm in Huntingdon County.
The farm is owned by defendant Millard Bay Swope, better known as Bay Swope and hereinafter referred to as Bay. He acquired it by deed dated April 1, 1936, from Swirles L. Himes, administrator d. b. n. c. t. a. of the estate of Millard F. Swope. It contained 150 acres more or less, and on it were erected a frame house, a barn and outbuildings.
Plaintiffs, John F. Suchan and Anna P., his wife, have for many years been living on an adjoining farm and for the past five years were in negotiation with Bay for the purchase of his farm. On the night of March 30, 1945, he finally agreed to sell it to them. He conducted the transaction with one Joseph Danish who acted as agent for plaintiffs and to whom he gave a writing signed by him, as follows:
“March 30, 1945
Beceived of Anna Suchan Fifty ($50.00) dollars first payment on my farm the balancé thirty nine fifty 3950.
Bay Swope.”
At the time of the execution of this receipt Danish paid Bay the $50. in cash. The next morning Bay repented of his bargain and tried to induce plaintiffs to relinquish it but they refused to do so. On April 5 they demanded of him a deed, but then, for the first time, he told them that on December 1, 1944, he had sold part of the farm for $200 to his brother Albert Swope (later joined as a defendant in this action and hereinafter referred to as Albert) consisting of a tract of some 7 or 8 acres fronting on the State highway, and he notified them that he Avould not give them a deed of the farm unless this portion was excepted. The following day, April 6, he executed and delivered to Albert a deed cov *19 ering this tract as well as a plot of approximately 2 or 3 acres known as the “school house lot” which he had allegedly agreed to sell to Albert for $200 some eight years before. On that same day, April 6, plaintiffs filed the present bill in equity. On April 10 Bay tendered them a deed of the farm which excepted the two portions conveyed to Albert, but plaintiffs refused to accept it. A hearing was had in the equity proceedings and the court entered a decree ordering Bay to execute and deliver to plaintiffs, upon payment of the balance of the purchase money, a deed for the farm as described in the bill (which copied the deed under which Bay had acquired it), but excepting thereout a small plot which had been conveyed by him some years before to the Sinclair Befining Company together with two rights of way for the company’s pipe lines, and also excepting the school house lot sold to Albert. The decree further provided that Albert should execute and deliver to plaintiffs a quit-claim deed for the land conveyed to him on April 6 other than the school house lot. Defendants appeal.
Plaintiffs are entirely willing to accept a deed which excepts from the grant the plot and the rights of way given to the Sinclair Befining Company and also the school house lot, for they admit that they knew of these prior transactions and that they were genuine. The real controversy is in regard to the portion of the farm fronting on the State highway which Bay claims he sold to Albert on December 1, 1944.
In his attempt to defeat the present action Bay seeks recourse to the statute of frauds, claiming that the receipt of March 30, 1945, which referred to the property being sold as “my farm”, did not sufficiently describe it to permit of a decree of specific performance. This contention cannot be sustained. It is true, of course, that a contract for the sale of land is unenforceable if the property is not designated with sufficient definiteness to determine what is intended to be conveyed, nor can
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parol evidence be accepted to overcome the failure of the writing to locate the subject of the sale. But the ancient maxim still prevails: Certum est quod certum reddi potest, and, as was said in
Peart v. Brice,
Our reports are replete with cases in which specific performance was granted, declarations of trust held valid, or other relief granted, where the description of the property involved was not more definite or detailed than that in the present instance; for example: “all that piece bought of Rose by Thomas Smith and Porter Fleek”
(Smith & Fleek’s Appeal,
It might be added that the statute of frauds was not invoked as a defense in the answer filed to the bill in equity, nor was any objection made at the hearing to the admission of evidence in support of the agreement of sale; this in itself is fatal to Bay’s present position:
Sferra v. Urling,
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It is urged by Albert that since his brother agreed to sell him the front acreage of the farm on December 1, 1944, and subsequently executed a deed to him in pursuance of that agreement, his rights therein are paramount to those of plaintiffs on the principle that, where there are outstanding two executory contracts for the sale of land, the first in .time is first in right, and a court of equity will not lend its aid to violate the superior right of the first purchaser by decreeing specific performance. to the later one:
Maguire v. Heraty,
Although not referred to in the answer to the bill in equity, it is now urged, as a final defense, that a tender of the balance of the purchase money was never made by plaintiffs. As Eay declared, however, that he would not give them the deed to which they were entitled, any such tender became unnecessary, because the law is too pragmatic in its philosophy to require the doing of a vain and useless act:
Schwartz v. Wesoky,
Decree affirmed; costs to be paid by defendants.