Summary
invalidating a deed that provides " tract of land lying on the north side of Watery Branch, in the county of Johnston and State of North Carolina, containing 150 acres"
Summary of this case from In re Deuce Investments, Inc.Opinion
(December Term, 1859.)
1. Receipts for money paid upon a verbal contract, and which are relied on as evidence of the contract, form no exception to the rule that a writing containing a patent ambiguity cannot be helped by a parol evidence.
2. Where the description of the land in a memorandum of contract is vague and indefinite, equity will not decree a specific performance.
3. Where a bill for a specific performance contains a prayer for general relief, and the answer admits the payment of a part of the purchase money, and contains an offer to settle, it was Held that the court, although it cannot decree a specific performance for want of a sufficient writing within the statute of frauds will, nevertheless, decree an account and repayment.
CAUSE removed from the Court of Equity of JOHNSTON.
R. G. Lewis for plaintiff.
Strong for defendant.
The bill alleges that some time in 1852 the defendant contracted with the plaintiff to convey to him a small tract of land, in the county of Johnston, containing 150 acres, for and in consideration of the sum of $450; that no memorandum of the contract was made at the time; that by the terms of this agreement, the plaintiff was to pay the purchase money in such installments and at such times as should be most convenient; that defendant was to retain the title until all the money (154) was paid; that in pursuance of this agreement, the plaintiff, on 21 August, 1852, made the first payment and took from the defendant the following receipt:
"Received, this 21 August, 1852, of Henry Capps $100, in part payment of a greater sum due to me on a bargain made by us for a tract of land lying on the north side of the Watery Branch, in the county of Johnston, and State of North Carolina, containing 150 acres. It is also stipulated between us that so soon as the balance of the money is paid me, I shall then be bound to make him a lawful and just deed for the same. WILLIAM D. HOLT."
The plaintiff relies upon this as being a sufficient memorandum of contract within the statute of frauds.
The bill further alleges that the plaintiff made several other payments at different times, and that he several times applied to the defendant, offering to make the final payment and demanding a conveyance, but the defendant refused to comply with his agreement.
The defendant in his answer admits the payment of a part of the purchase money, but denies the sufficiency of the receipt of 21 August as an evidence of the contract within the requirements of the statute of frauds.
The answer alleges further that by the terms of the verbal contract the purchase money was to be paid within a time certain, and the plaintiff having failed so to pay, defendant several times offered to come to a fair settlement with him by the intervention of any two disinterested persons, with the privilege of calling in an umpire, but plaintiff refused.
A specific execution of the alleged contract cannot be decreed. The receipt of 21 August, 1852, is not sufficient as a note or memorandum in writing of the contract to fulfill the requirement of the statute. (Rev. Code, chap. 50, sec. 11.) (155)
The land is described to be "a tract of 150 acres, lying on Watery Branch, in Johnston County."
The position thus given is not definite enough, and no decree for conveyance could be based upon it. From the frame of the receipt, it is not clear that it contains the whole or was intended as a memorandum of the contract, and on that account might not meet the demands of the statute. But whether it were so intended or not is immaterial to our present inquiry. The writing, of itself, clearly is too vague and uncertain in the description of the land bargained for to warrant us in declaring where it is, by what termini included, and decreeing a conveyance of it.
It has been settled, specially in reference to contracts of this sort, that they do not form exceptions to the general rule that written contracts cannot be varied, added to, or subtracted from by parol evidence. The rule is of universal application that apparent ambiguity or uncertainty in contracts cannot be helped by parol; but if the instrument be in itself sufficient, and the ambiguity arise from proof, such ambiguity may be explained by proof. This is indeed the discretion between patent and latent ambiguity; the one is apparent upon the reading of the paper, as in our case; the other springs from evidence dehors; and parol evidence is inadmissible in the one case and admissible in the other. Allen v. Chambers, 39 N.C. 125; Albea v. Griffin, 22 N.C. 9; Murdock v. Anderson, 57 N.C. 77.
As we are not at liberty to resort to evidence outside of the paper to aid us, and the paper itself is insufficient, it follows the plaintiff cannot have the relief of specific performance.
We collect, however, from the answer an offer on the part of defendant to account with plaintiff fairly, and, therefore, having cognizance of the subject-matter of controversy, we take a jurisdiction under the prayer for general relief to adjust the rights of the parties as the defendant offers to do, and it is accordingly referred to the clerk of this Court to state an account between them, charging defendant with (156) all the payments that have been made to him on account of the land and crediting him with a reasonable rent for the same during the time that complainant occupied it, and also for the turpentine boxes.
PER CURIAM. Decree accordingly.
Cited: Dickens v. Barnes, 79 N.C. 492; Farmer v. Batts, 83 N.C. 388; Breaid v. Munger, 88 N.C. 299; Wharton v. Eborn, id., 346; McCracken v. McCracken, ib., 285; Wilkie v. Womble, 90 N.C. 255; Reed v. Reed, 93 N.C. 466; Fortescue v. Crawford, 105 N.C. 32; Blow v. Vaughan, id., 203; Cathey v. Lumber Co., 151 N.C. 596.
Dist.: Phillips v. Hooker, 62 N.C. 197.
(157)