Tippins v. Phillips

123 Ga. 415 | Ga. | 1905

Evans, J.

(After stating the facts.) In order to recover damages in lieu of specific performance, it is essential that a case for specific performance be made out. Prater v. Sears, 77 Ga. 28. Was the contract sufficiently certain as to the subject-matter to authorize a court of equity to decree specific performance ? The statute of frauds requires all contracts for the sale of land or any interest therein to be in writing, signed by the party to be charged therewith or some person by him lawfully authorized. Civil Code, § 2613, par. 4. Every essential element of the sale must be expressed in the writing, to meet the statutory requirement. One of the essentials is that the land must be so described that it. is capable of identification. While it is not necessary that the land be described with such precision that its location and identity are apparent from the description alone, yet the description must be sufficiently clear to indicate with reasonable certainty the land intended to be conveyed. Parol evidence can not be invoked in aid of a vague and uncertain description, but is available, under the maxim id certum est quod cerium reddi potest, to show the application of a description which itself furnishes a means of identification. If the land is so imperfectly and indefinitely described in the writing that no particular tract or lot is designated, parol evidence is not admissible to supply a description. Douglass v. Bunn, 110 Ga. 159. The land described in the writing is “424 acres in Tattnall county.” Nothing could be more indefinite than this description; not 'the slightest key is furnished to locate the land. It is not even as specific as the description in Gatins v. Angier, 104 Ga. 386. There the land was described as “a certain piece of land described as follows: commencing about one hundred (100) feet from the land-lot line on Mayson & Turner’s road and extending along said road four hundred and twenty (420) feet and running back a uniform width to the Sims land; ” and this description was held to be so indefinite and vague as to render it impossible to identify any particular land. There is a distinction between a vague and an ambiguous description. In the latter case parol evidence is admissible to explain the ambiguity. It was on this principle that the court, in Mohr v. Dillon, 80 Ga. 572, allowed parol proof to show that the hundred acres referred to in the auctioneer’s memorandum were bounded in a certain way. The question in that case was whether the memorandum as to who was the purchaser and who was the vendor, and as to the land itself, was ambiguous on its face; and the court held that it was. As to insufficient description in deeds, see Luttrell v. Whitehead, 121 Ga. 699; Crawford v. Verner, 122 Ga. 814.

But it is insisted that the clause, “ The price of said land, if taken in the limit of this option, is to be $1,100.00, said price to also include my share of the crops now growing on the said land,” serves to point out a definite and certain tract of land in Tattnall county upon which D. W. Phillips had a share in a crop. For aught that the writing discloses, there may be other lots of land in which Phillips had an interest in the crops. After all, it would be first necessary to locate the land to find the crops, and the writing does not identify the land. The salutary rule that contracts for the sale of land must be in writing would be practically abrogated if courts were to allow the parties to supply by parol a description to the land, when the writing contains no descriptive words indicating any particular land. Neither does the letter attached to the petition supply the deficiency in the description in the option. The letter was written about a month after the execution of the option, and makes no reference to the option. The connection of the two writings can not be shown by parol evidence. North v. Mendel, 73 Ga. 400. There is no prayer in the petition either for specific performance of the parol contract in reference to the two tracts adjoining the tract of 424 acres, or for damages resulting from the breach of the contract; hence it is unnecessary to decide whether the letter attached to the petition, was sufficiently certain to prove the subsequent sale by parol of these two tracts. The written agreement on which the suit is based is void for lack of sufficient description of the land, and there was no error in sustaining the demurrer which pointed out this vital defect in the petition.

Judgment affirmed.

All the Justices concur, except Simmons, C. 11, absent.