Summary
In Jones v. Hickson, 204 Miss. 373, 37 So.2d 625 (1948), this Court held that a contract to sell and convey real estate ordinarily requires a conveyance of the fee simple title clear of all liens and encumbrances.
Summary of this case from Busching v. GriffinOpinion
November 22, 1948.
1. Appeal — interlocutory appeal — when allowed to settle controlling principles.
When a general demurrer to a bill has been overruled, an interlocutory appeal to settle all the controlling principles will be allowed if there are apparent confusions in the opinions of the appellate court on the questions materially involved.
2. Contracts — sale of lands — general description, sufficiency of — statute of frauds — when parol evidence admissible.
In accord with the maxim "id certum est quod certum reddi potest," the rule is that where a parcel of real estate is conveyed by well known designations, such a conveyance is valid, although resort to extrinsic evidence may be necessary to show what was accurately included in the general description employed in the conveyance. Hence a written contract to sell "120 acres of land the Old Hatcher Place" is not invalid under the statute of frauds, and extrinsic evidence may be received to identify the description and to supply also the omission of state and county.
3. Vendor and purchaser — character of deed required when contract silent.
A contract to sell and convey real estate ordinarily requires a conveyance of the fee simple title clear of all liens and encumbrances. Therefore when such a contract is silent as to the character of the deed to be made, the presumption arises that a warranty deed was intended.
Headnotes as approved by Smith, J.
APPEAL from the chancery court of Jones County, ROY P. NOBLE, Chancellor.
Ellis B. Cooper and M.W. Boyd, for appellant.
It will be observed from a reading of Exhibit "A" as follows:
1. Appellant agrees to sell to "Bob Hickson 120 acres of land the old Hatcher Place for $2500.00, — ".
Does he mean that 120 acres and the Old Hatcher Place are one and the same tract or are they different tracts?
One would say probably they are one and the same tract until we reach these words; — "Agree to give him deeds as soon as I can get H.H. Mitchell to make deed." This agreement speaks of "deeds" indicating more than one tract is involved.
This may be considered unimportant but it does indicate the uncertainty which enshrouds the whole agreement.
2. Assuming for the sake of the argument, however, that the words "Old Hatcher Place" are descriptive of the "120 acres of land," we submit that this is not sufficient to meet the requirements of the statute of frauds.
Whether the "Old Hatcher Place" is in the State of Mississippi does not appear. Assuming it is in the State of Mississippi, it still does not appear in what county the land is located. The only way that this could be reached to supply these defects would be by parol testimony. Appellant submits that it is not competent to meet the requirements of the statute of frauds by parol testimony.
At no place does it appear what the description of the 120 acres of land is. This description will have to be supplied by parol testimony and this the appellant says is not competent.
3. Appellee's prayer is for a warranty deed and at no place does it appear that there is any obligation on the part of the appellant to give a warranty deed.
4. Appellee says that he is to pay $100.00 per year with 2% interest. It may be that this is properly deducible from the agreement.
The latest decision of this court on this subject is that of Culpepper v. Chain, 32 So.2d 266, decided on October 27, 1947. In that case it was alleged that Chain offered and agreed to pay Culpepper $650.00 for the property and that a substantial payment was made for which a receipt in the following form was issued: "March 20, 1943. Received from Z.D. Chain the sum of $400.00 as payment on the place on which he now lives. Clarence Culpepper." The court below held that the above was a sufficient memorandum under our statute of frauds and allowed oral testimony to supply whatever deficiencies the document possessed. The court says this: "The memorandum which should stand alone, falls for lack of that support which the statute denies to it. Its insufficiency is attested by its need for extrinsic aid. Introduction of such testimony was objected to by defendant without avail." The court concludes by a statement of its disagreement with the lower court's view and held the memorandum insufficient.
Placing the case at bar by the side of the cited case, we submit that it is conclusively decisive of the case at bar The court says that the need for extrinsic testimony shows its insufficiency. Does the memorandum in the case at bar need such aid?
In the first place, the description of the property must be supplied by extrinsic testimony and the appellee seeks to do so by allegations of the bill of complaint. In the second place, this description must be tied to the "Old Hatcher Place" by extrinsic testimony. In the third place, it must be shown by extrinsic testimony that the "Old Hatcher Place" in Jones County, Mississippi, is the one referred to and that there are no other "Old Hatcher Places."
It is respectfully submitted on the authority of the above case that the need for extrinsic testimony which is here demonstrated to be necessary is sufficient in itself to defeat the purpose of the bill of complaint. Appellee seeks to supply all of these defects by allegations in the bill of complaint. He gives the description of 120 acres of land and says that this is the "Old Hatcher Place." He supplies by allegations the fact that the "Old Hatcher Place" is situated in the Second Judicial District of Jones County, Mississippi. He would have to support these allegations by testimony and the admission of this testimony would be in violation of the principles announced above.
Another case to a similar effect is that of Paine v. Mikell, 187 Miss. 125, 192 So. 15. There the note or memorandum was in the nature of a receipt reading: — "Received of Mr. Mikell the sum of $15.00 to apply on purchase of Lot 64 — Block B, of Pine Acres, and also Lot 64 extended through Lot 45 of B Block B — sold for $600.00, when $50.00 paid. Deed given and 36 notes at $10.00 per month and one (1) note for balance due three yrs. All at 6% and secured by Deed of Trust. April 9th 1937. Willis Brown by Mrs. Willis Brown."
The court said: "It will be observed that the receipt above set forth, referred to in the pleading as a memorandum of the contract of sale, does not state in what county and state the lots are located, and neither does it purport to be made on behalf of the appellant, Mrs. Kathleen K. Paine, as the owner of the property in question. That the alleged contract of sale was therefore insufficient under the statute of frauds, section 3343, Code of 1930, to obligate the appellant to convey the lots to the appellee."
In Waul v. Kirkman, 27 Miss. 823, this court said: — "The rule upon this point is well settled to be, that the memorandum, in order to satisfy the statute, must contain the substantial terms of the contract expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence." See also McGuire v. Stevens, 42 Miss. 724; Holmes v. Evans, 48 Miss. 247.
In the case of Taylor v. Sayle, 163 Miss. 822, 142 So. 3, there was a sale by an auctioneer of property known as "Turkey Creek Place." There was no other description in the note or memorandum. While the court deemed it unnecessary to decide the question it does say this: — "A contract for the sale of land to be valid under the statute of frauds, . . . must describe the land with reasonable certainty, or refer to and identify other writing by the aid of which the description can be made certain. If parol evidence is here admissible, under the provision of the contract relied on therefor, to complete what the appellants here say is the description of the land intended to be conveyed, the contract will then rest partly in writing and partly in parol; and when such is the case, the contract is void."
And in the case of Nickerson v. Fithian Land Company, 118 Miss. 722, 80 So. 1, this court said: — "The agreement to convey cannot be enforced in any case unless the writing identifies with certainty the property sought to be conveyed and the terms of the sale." See also Cole v. Cole, 99 Miss. 335, 54 So. 953.
The case of Kervin v. Biglane, 144 Miss. 666, 110 So. 232, is in point. This court there said: — "Under the above quoted rule, it certainly is a most essential element that the contract state or show in some manner whether a warranty deed or a quit-claim deed was to be executed or not. These are just as essential elements as the purchase price."
A large number of cases can be cited from this court. They adhere to the rule announced in Waul v. Kirkman, cited above. In fact this court has been adamant in its adherence to that rule.
Here we have a case where the appellant signed an agreement whereby the appellant "agrees to sell to Bob Hickson 120 acres of land the Old Hatcher Place for $2500.00, $150.00 cash and $100.00 each year until paid for at 2% ints." There is no description of the lands. It does not appear in what state or in what county the land is located. The place of the execution of the agreement does not even appear. The type of deed or deeds to be executed does not appear. Whether the "Old Hatcher Place" and 120 acres are to be deeded is not clear.
All of these elements are supplied, it is true, by allegations of the bill of complaint. But to write them into the contract would require extrinsic evidence of a parol nature. The cited cases are against this.
M.J. Peterson and T.W. Davis, Jr., for appellee.
Answer to appellant's argument and authorities.
1. The appellant raises the question as to whether the agreement herein sued upon (being exhibit "A" to the bill of complaint) attempts to describe two separate tracts of land. We wholly fail to share the appellant's apprehension on this point. This part of the agreement reads, "This is to certify I, C.H. Jones, agrees to sell to Bob Hickson 120 acres of land the Old Hatcher Place for $2500.00." The agreement does not read "120 acres of land and the Old Hatcher Place." In fact, there is nothing whatsoever in the agreement to indicate that the agreement is referring to two separate tracts of land. It is our contention that the instrument must be read as a whole and that the agreement reads, "120 acres of land the Old Hatcher Place" which means one tract of land being the Old Hatcher Place, comprising 120 acres of land. It is our further contention that this is a designation of the land herein sued upon by the name under which it is commonly known in the area in which the land is located, and that such designation is amply sufficient to comply with the requirements of the statute of frauds.
The appellant refers to that part of the agreement reading "Agree to give him deeds as soon as I can get H.H. Mitchell to make deed." We respectfully call the court's attention to the latter part of this sentence reading, "As soon as I can get H.H. Mitchell to make deed." We contend that the instrument itself shows that it was prepared by a person unskilled in the law, and that the instrument must be looked to as a whole in order to arrive at its true intention rather than the singling out of some minor typographical error in the said instrument.
2. We admit that the instrument herein sued upon (Exhibit "A" to the bill of complaint) does not show the County or State in which the said land is located. It is our contention, however, that his omission is a latent ambiguity that this can be supplied by the pleadings, and parol testimony, as will hereinafter be set out in this brief.
The appellee contends that "120 cares of land the Old Hatcher Place", is descriptive of the land herein sued upon, being the name by which this land is well known in the area in which the said land is located, and that the explanation of what land the term "120 acres of land the Old Hatcher Place" actually covers can be supplied by the pleadings, and parol testimony, on the trial of the cause, should the appellee be able to make such proof.
3. The question as to the kind of deed that the appellee is entitled to obtain from the appellant is discussed hereinafter in this brief.
4. The appellee contends that all of the terms of the agreement between the parties are clearly set forth in the agreement, and that there can be no possible question raised as to the agreement of the parties thereto.
The appellant, in his brief, places much emphasis, and, in fact, relies primarily in his said brief, upon the holding of this honorable court in the case of Culpepper v. Chain, 32 So.2d 266, decided on October 27, 1947. We most earnestly submit that the decision of this honorable court in said case is not applicable to the case at bar, and is not controlling thereof. It is to be recalled that the case at bar is one seeking the specific performance of a written contract for the sale of the land involved in the suit.
The case of Culpepper v. Chain, (Ib) was a suit seeking the confirmation of the title to the land therein sued upon by the appellee, Chain. The said appellee, Chain, had no deed from the appellant, Culpepper, but filed suit to confirm his title to said land based upon a receipt signed by the appellant, Culpepper, in which Culpepper acknowledge receipt from Chain of "The sum of $400.00 as payment on the place on which he now lives." In this case this honorable court held in part, as follows: "We are compelled to disagree with the learned Chancellor's views that this was a sufficient memorandum under our statute of frauds, Code 1942, section 264. The record is much enlarged by oral testimony to explain its meaning, thus exemplifying the very uncertainties which the statute was designed to preclude, and . . . We are of the opinion that there was no sufficient conveyance of the title by Culpepper, and that the prayer of the bill ought to have been denied."
It is thus readily seen that in the above mentioned case the appellee was attempting to have the receipt declared to be a conveyance, and this honorable court held that such receipt did not constitute a sufficient conveyance of the title to the land involved in this suit to be effective.
We submit that this case is no wise similar to the case at bar, and that the holding of this honorable court in said cause is not conclusive of the case at bar.
The case of Paine v. Mikell, 187 Miss. 125, 192 So. 15, cited by the appellant, is not, we submit, in point with the case at bar, and is not conclusive thereof. In the Paine v. Mikell (Ib) case, the instrument therein sued upon was a receipt signed by a real estate agent, and not be the owner of the property. The court, in its opinion, points out that the receipt did not even purport to be executed on behalf of the owner of the property. Certainly an instrument not signed by, or on behalf of, the party sought to be bound there by, does not comply with the requirements of the statute of frauds. We submit, therefore, that there is no similarity whatsoever between this case and the case at bar.
The decision of this honorable court in the case of Waul v. Kirkman, 27 Miss. 823, cited by the appellant in his brief, states the general rule of law regarding the requirements of the statute of frauds. It is the contention of the appellee that we have fully met the requirements of the statute of frauds in the case at bar.
The case of Holmes v. Evans, 48 Miss. 247, cited by the appellant in his brief, is authority for the position taken in the case at bar by the appellee.
Appellant, in his brief, cites the case of Taylor v. Sayle, 163 Miss. 822, 142 So. 3, as authority for his contention in this cause. It is the contention of the appellee that the decision of this honorable court in said case is amply authority for the position taken in this cause by the appellee. In this cause, the appellants (complainants in the court below sought to enforce upon the appellees the purchase of "Real Property known as Turkey Creek Place situated in Yalobusha County, Mississippi, and containing approximately 1430 acres of land together with all improvements thereon." The bill of complaint recited that the appellees agreed to purchase the land "Known as the Turkey Creek Place on Turkey Creek except that part of the Newberger Place on Turkey Creek lying West of Turkey Creek in the SW/4 of Section 19 and the NW/4 of Section 30." The appellees declined to purchase the said land because of the fact that the appellants had conveyed to other parties all that part of the Turkey Creek Place lying West of the Creek, containing 97.75 acres of land, which was relatively of more value than most of the remainder of the Turkey Creek Place. This honorable court held that to uphold the contention of the appellants would require the carrying out of the terms of the written contract for the sale of all of the Turkey Creek Place, and then allow parol testimony to be introduced setting up that that part of Turkey Creek Place lying West of the Creek was excluded from the said sale, under an oral statement of the auctioneer making the said sale, thereby making part of the agreement to be in writing and part of the same to rest in parol, which was in contravention of the statute of frauds. We quote from this decision, in part, as follows:
"From this one or two results follow, either (1) the appellants can obtain the specific performance of the contract by making it appear that they are willing and able to convey to the appellees the Turkey Creek Place, or (2) the contract is void, and therefore, unenforceable." From this it is seen that should the appellants in the above mentioned case been able to deliver a good title to all of "The Turkey Creek Place," then the appellants would have been entitled to enforce specific performance of the written contract providing for the sale of said land.
In the case at bar, we have a description of the lands set out in the memorandum sought to be enforced, reading, "120 acres of land the Old Hatcher Place," while in the Taylor v. Sayle (Ib) case, the property was described as "Turkey Creek Place situated in Yalobusha County, Mississippi and containing approximately 1430 acres of land together with all improvements thereon".
The case of Nickerson v. Fithian Land Company, 118 Miss. 722, 80 So. 1, is certainly not in point with the case at bar. In this case, the agreement under which specific performance was sought, read as follows:
"Received from Monroe Nickerson the sum of $9.00 to apply on purchase of land on the South side of the town of Darling, to be measured later and paid for at the rate of $30.00 per acre." According to the bill of complaint the land which the appellant sought to have conveyed to him was located on the East side of Darling, and not South of said town as described in the writing. There was nothing whatsoever in this writing to identify the land sought to be purchased. This honorable court properly held that the agreement was unenforceable in that case.
The case of Kervin v. Biglane, 144 Miss. 666, 110 So. 232, is not in point with the case at bar. The written agreement sought to be enforced in this case read as follows: "Collins, Mississippi 2-16-26. For the consideration of $1.00 I hereby give O.J. Biglane option on Lots 1 and 2, town of Collins, Mississippi, known as the Collins Furniture and V.T. Dees Son Store location, for 60 days, which option ends April 16, 1926. The consideration of Lots is to be $4250.00 (Forty-two hundred and fifty Dollars) "Signed J.D. Kervin", Witness: Mrs. J.D. Kervin". Biglane filed suit in the lower court to compel specific performance of the agreement. He claimed that Kervin, the defendant, under the above set out written memorandum, agreed to sell to Biglane the property described in the memorandum, "Less a strip on the West side fronting Main Street". This honorable court held that it was unable to determine from the wording of the written memorandum whether the agreement was for the sale, or the lease, of the property mentioned in the said written memorandum. This court further held that there was a variance between the description of the land sought to be purchased under the suit and the property covered by the said written memorandum, inasmuch as the suit sought to compel the conveyance of the land mentioned in said memorandum, "Less a strip on the West side thereof being 2 feet 6 inches wide fronting Main Street." The court further held, this part of the said opinion being, in our opinion, obiter dictum, that the said agreement was faulty because it did not state whether a warranty deed or a quit claim deed was to be executed. It is our contention that this particular point was not raised by the pleadings, was not required in a proper decision of the suit, and that said statement constituted obiter dictum on behalf of the justice writing the opinion in said cause. Further, we have carefully checked the applicable decisions of the Supreme Court of this State and we have failed to find any decision to support this finding.
The description in the written agreement herein sued on is sufficient to meet the requirements of the statute of frauds. It is a long established custom in this state to describe lands by the name by which the said land is well known in the area in which the said land is located.
The case of Raines v. Baird, 84 Miss. 807, 37 So. 458, is directly in point with the case at bar, and, in our opinion, the holding of this honorable court in said cause is controlling of the case at bar in favor of the appellee. This case involved a bill to enforce the specific performance of the following written contract: "It is hereby understood and agreed by and between J.B. Baird of the first part and N.B. Raines of the second part that for the consideration of $800.00, eight hundred dollars, to be paid in five annual installments each of equal amount and settled by five promissory notes of equal amounts bearing interest at 10 per cent. per annum from Jan. 1st, 1887, the party of the first part agrees to sell bargain and convey to said party of the second part that tract of land adjoining section Nine, and known as the Phil Allen Place, containing eighty acres more or less, and the party of the second party further agrees to secure the party of the first part in the payment of said notes and interest thereon by deed of trust on said land."
The agreement in that case, which the honorable court held to meet the requirements of the statute, did not describe the lands by legal subdivisions, did not show what county or state the land was located in. The agreement is also silent as to the nature of the conveyance to be executed by the persons agreeing to sell the said land. The facts in this case are almost identical with the case at bar, and, we humbly submit, the holding of this court therein is conclusive of the case at bar in favor of the appellee.
In the case of Vaughn v. Swayzie, 56 Miss. 704, this honorable court held that a State Auditor's deed to "Commencement Plantation, consisting of 1330 acres," was not void for uncertainty in description.
In the case of Dochterman et al. v. Marshall et al., 92 Miss. 747, 46 So. 542, the court upheld the conveyance of land under the designation "St. Albans". In this case, the court quoted the general rule thusly: "While there can be no controversy that a conveyance of land by general description, such as giving the name by which the estate is commonly known, is sufficient, still the general description will be controlled by the subsequent particular description." The very unusual feature of the above mentioned case is the fact that the court upheld the conveyance of all of "St. Albans", whereas the specific description in the deed attempted to convey less total lands than that embraced in "St. Albans"; in this case the court found that the pleadings, and evidence clearly showed that the parties to the agreement meant to convey all of "St. Albans." Thus, although the specific description in the deed actually described less than that embraced in "St. Albans".
In the case of Taylor v. Sayle, 163 Miss. 822, 142 So. 3, this court held that under an agreement to convey the "Real Property known as Turkey Creek Place situated in Yalobusha County, Mississippi, and containing approximately 1430 cares of land together with all improvements thereon", could be enforced by the seller, provided he was willing and able to convey to the purchaser all of the "Turkey Creek Place". Se also Kyle v. Rhodes, 71 Miss. 487, 15 So. 40; William Eggleston v. Mary Watson, 53 Miss. 339.
Omission of county and state in agreement not fatal to validity of instrument. In the case of Hanna v. Renfro, 32 Miss. 125, this court held, in part, as follows: "A tax collector's deed which designates the land sold by the proper Section, Township and Range, but omits to designate the County or State in which it is situated, is not void for uncertainty; such omission creates a latent ambiguity which may be explained by parol evidence showing the identity of the land", and "It is no objection to the introduction in evidence of a deed, that there is a latent ambiguity in it, which is capable of explanation by other evidence; but if it be introduced and be not explained, and rendered certain by other evidence, it should then upon motion be excluded from the consideration of the jury." See also Ladnier v. Ladnier, 75 Miss. 777, 23 So. 430, and Peacher v. Strauss, 47 Miss. 353.
Failure of agreement to designate nature of deed to be executed by seller not fatal to validity of instrument. That part of the instrument herein sued upon concerning the nature of the conveyance the seller obligated himself to execute reads: "Agree to give him deeds as soon as I can get H.H. Mitchell to make Deed."
The agreement unquestionably provides that the seller will execute a deed to the land. What was meant by the term "Deed" used in the agreement?
Black's Law Dictionary defines the word "Deed" thusly: "A sealed instrument, containing a contract or covenant, delivered by the party to be bound thereby, and accepted by the party to whom the contract or covenant runs." "A writing containing a contrart sealed and delivered to the party thereto. 3 Washburn Real Prop." "In its legal sense, a deed is an instrument in writing, upon paper or parchment, between parties able to contract, subscribed, sealed, and delivered. Insurance Co. v. Avery, 60 Ind. 572; 4 Kent, Comm. 452". In a more restricted sense, a written agreement, signed, sealed, and delivered by which one person conveys land, tenement, or hereditaments to another. This is its ordinary modern meaning. Sanders v. Riedinger, 30 App. Div. 277, 51 N.Y. Supp. 937; Reed v. Hazleton, 37 Kan. 321, 15 P. 177; Dudley v. Summer, 5 Mass. 470; Fisher v. Pender, 52 N.C. 485."
In the case of Feemster v. May, 13 Smedes M. 275, this court held:
"It is not a compliance with a covenant to make a good and perfect deed to make a deed good in form only. The title must be good to satisfy the undertaking." See also Wiggins v. McGimpsey, 13 Smedes M. 532, and 55 Am. Jur., section 149, page 619.
The appellee filed his original bill in the Chancery Court of the Second Judicial District of Jones County, praying that appellant be required specifically to perform the following contract to convey land, viz.: "This is to certify I C.H. Jones agrees to sell to Bob Hickson 120 acres of land the Old Hatcher Place for $2500.00, $150.00 cash and $100.00 each year until paid for at 2% Ints. Agree to give him deeds as soon as I can get H.H. Mitchell to make deed. C.H. Jones, DDS, 11/14/42."
The original bill charged full compliance by appellee with the requirements of the agreement, and was accompanied by payment into court of the full amount of the balance of the purchase money. It also averred that, although requested to do so, appellant had refused to make the conveyance as he was obligated to do. The bill also stated that appellant had never called on H.H. Mitchell to prepare the deed, Mr. Mitchell being the usual and customary scrivener of deeds in the community.
Appellant answered, which was made a cross-bill, and which also contained a general demurrer on the grounds that "The alleged contract attached as Exhibit `A' is unenforceable because of the statute of frauds in that the location of the land and the description thereof do not appear from said contract . . . The complainant can have no relief for the reason that said Exhibit `A' to the bill of complainant is not such a promise or agreement or memorandum or note thereof as satisfies the requirements of the Statute of frauds."
This demurrer was overruled, (Hn 1) and an interlocutory appeal was granted to settle all the general controlling principles of the cause, and to save expense and delay. We have retained the appeal because of some apparent confusion in the opinions of the court, and because expense and delay will be avoided by decision of the issue on this appeal. The overruling of the demurrer is the only assignment of error, and forms the only question before us.
The arguments of appellant, which we deem worthy of notice, are two: (1) That the term "Old Hatcher Place" is an insufficient description to meet the requirements of the statute of frauds; (2) and that appellee must fail in his prayer for a warranty deed, at all events, since the agreement contains no express agreement therefor.
The applicable part of the statute of frauds provides that no action shall be brought whereby to charge a defendant or other party "upon any contract for the sale of lands, tenements, or hereditaments, . . . unless . . . the promise or agreement upon which such action may be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some person by him or her thereunto lawfully authorized in writing." Code 1942, Section 264.
The only description of the land agreed to be conveyed is "120 acres of land the Old Hatcher Place," without giving the district, county and state, which, appellant contends makes the agreement void and unenforceable. The appellee, on the other hand, takes the position that extrinsic evidence is competent to delineate the boundaries and location of the "Old Hatcher Place." The chancellor, as stated supra, agreed with appellee, and overruled the demurrer.
Appellant cites the recent case of Culpepper v. Chain, Miss., 32 So.2d 266, not yet reported in State Reports, which involved a receipt for money with reference to the sale and purchase of land, and which was sought to be made operative as a deed. The effect of the opinion was a denial that extrinsic evidence could be adduced for that purpose. The case was correctly decided, but is not in point on the entirely different issue in the case at bar.
Our attention is also called to the case of Paine v. Mikell, 187 Miss. 125, 192 So. 15, 16, where the Supreme Court held that a receipt for a down payment on purchase price of lots was insufficient under the statute of frauds as a memorandum of contract of sale, in the absence of statement therein as to the county and state in which the lots were located or of indication that it was made on behalf of the owner of the lots. However, the opinion of the Court there indicated the difference between that case and the instant case, where it said: "The appeal was perfected within the time required by law after the date of the final decree awarding the damages aforesaid, and so as to entitle the appellant to have the question determined by this court as to whether or not the original decree was properly rendered against her upon the bill of complaint, decree pro confesso and proof offered at the original hearing . . ." The Court said further that: "It is contended, however, that since the appellant did not appear and plead the statute, Section 3343, supra, the point cannot be raised here on appeal." It will be noted here that no effort to offer extrinsic evidence of the state and county appears to have been made in the trial court, for the purpose of making the location of the lots more certain as to state and county, and hence the case is not in conflict with the conclusion we have reached in the instant case.
In the case at bar, (Hn 2) the original bill, by proper averment, defines the 120 acres comprising the Old Hatcher Place by metes and bounds, and locates it in the Second Judicial District of Jones County, Mississippi. As pointed out with reference to the case just cited, there was no proof offered as to the situs of the land in any state and county, whereas here, no doubt evidence will be offered to show the district, state and county, on remand, and it will be competent, since "120 acres of land the Old Hatcher Place" furnishes sufficient other means of identification as a basis of clarification of the description, if the the Old Hatcher Place be proven to be where the petition avers it is located.
Appellant further relies on the case of Taylor et al. v. Sayle et al., 163 Miss. 822, 142 So. 3, involving the enforcement of the sale of "real property known as Turkey Creek Place situated in Yalobusha County, Mississippi, and containing approximately 1430 acres of land together with all improvements thereon." A careful reading of the opinion, we think, will demonstrate that it supports the position of appellee here, rather than that of the appellant.
The memorandum of sale was held insufficient where the real property was described as "on the south side of the town of Darling, to be measured later." This holding was of course correct, but the case is not helpful here. At any rate, the lots turned out to be on the east side of Darling. Nickerson v. Fithian Land Co., et al, 118 Miss. 722, 80 So. 1.
We do not deem the case of Kervin v. Biglane, 144 Miss. 666, 110 So. 232, cited by appellant, to be conclusive here, because the Court there was unable to determine whether the memorandum dealt with a sale or a lease, and there was a variance between the land sought in the original bill and that described in the memorandum. However, it was held that the contract must show in some manner whether it is a contract to sell or not, and also whether a warranty or a quitclaim deed was to be executed. But apparently only an option was at issue there, while here the memorandum specifically provides for a deed. We deal further with this question later herein.
In a case wherein this Court said of the agreement that it was "for a house and lot, without designating the same, or referring to anything by which they could be ascertained" (italics supplied), it was declared that "Oral evidence is inadmissible for the purpose of supplying an omission in an instrument where written evidence is required by law." But it was at the same time announced that: "Every agreement which is required by the statute of frauds must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision, otherwise it cannot be carried into effect." McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649.
In a suit to enforce performance of a contract describing the subject matter as "a piece of property on the corner of Main and Pearl Streets, City of Natchez," relief was denied because "the receipt refers to no extrinsic fact by which it could be ascertained on which corner of Main and Pearl Streets the land in controversy is situated." For that reason, it was held that extrinsic parol evidence was incompetent. Holmes v. Evans and Monahan, 48 Miss. 247, 12 Am. Rep. 372.
Referring to facts de hors the writing, as far back in our jurisprudence as Smedes M. Ch. 338, at page 342, in the case of Jenkins v. Bodley, the Court held that if the written instrument contained sufficient facts to point out the locality of the lot involved, `and to supply by inquiry, information as to the exact boundary of the lot, then the description must be held sufficient in equity, to protect the grantee in the deed against any subsequent purchaser."
This Court has definitely laid down the general rule in the case of Raines v. Baird, 84 Miss. 807, 37 So. 458, where the property was described simply as "that tract of land adjoining section Nine, and known as the Phil Allen place, containing eighty acres more or less." Specific performance was granted. The opinion quoted from Kyle v. Rhodes, 71 Miss. 487, 491, 15 So. 40: "It is a general rule that, where parcels of real estate are conveyed by well-known designations, such conveyances are valid, though resort to extrinsic evidence may be necessary to show what was accurately included in the general description employed in the conveyance. In the case at bar the memorandum in writing describes the premises by reference to extraneous facts, and in such instances it is proper to resort to extrinsic evidence to ascertain those facts, in order to show what was embraced in the general designation of the land which was employed by the grantor."
Compare the "Phil Allen place containing eighty acres" with "Old Hatcher Place," containing one hundred and twenty acres. The above is the rule in this State today, based on the maxim, id certum est quod certum reddi potest. It is also the general rule elsewhere. See 18 C.J., Deeds, Secs. 62(2), sufficiency (a) and 63(b), pages 180 and 181, and 26 C.J.S., Deeds, Section 30(g),
Certain lands were designated as one hundred sixty acres, known as the Vaughn tract, and another as the Price tract, containing two hundred and sixty acres. In dealing with the writing involved, the Supreme Court said: "If the meaning of the instrument, by itself, is affected with uncertainty, the intention of the parties may be ascertained by extrinsic testimony. 2 Parsons on Contracts 564. Where subject of a devise was described by reference to some extrinsic fact, it was not merely competent but necessary to admit extrinsic evidence to ascertain the fact, and through that medium, to ascertain the subject of devise." Tucker v. Field, 51 Miss. 191.
A deed from the State Auditor was not void for uncertainty or deficient description, where the land was described as "Commencement Plantation, consisting of 1330 acres." It was admitted that it contained 1330 acres. Vaughn v. Swayzie, 56 Miss. 704. See also, Dochterman et al. v. Marshall et al., 92 Miss. 747, 46 So. 542; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40.
A mortgage was placed on the land described as mortgagor's one-third interest in a plantation situated in Holmes County known as "Wanalaw." A bill to foreclose was met by a demurrer that the mortgage was void for uncertainty as to the thing conveyed. The Court did not think so, since "the description refers to extrinsic facts, and it may be shown what plantation in Holmes County is known as `Wanalaw.'" Eggleston v. Watson, 53 Miss. 339.
See also Miles v. Miles et al., 78 Miss. 904, 30 So. 2, Dixon v. Cook, 47 Miss. 220, where the omitted township and range was permitted to be supplied by extrinsic evidence, under the circumstances there; Hanna v. Renfro, 32 Miss. 125, where the omitted county and state were permitted to be proven by evidence, aliunde the writing; Foute v. Fairman et al., 48 Miss. 536, proof of township and range permitted, in order to supply omission thereof from the written instrument; Stewart v. Cage, 59 Miss. 558; Connell v. Mulligan, 13 Smedes M. 388.
In the case of Hanna v. Renfro, supra, we have declared that a tax collector's deed "which designates the land sold by the proper section, township and range, but omits to designate the county or state in which it is situated, is not void for uncertainty; such omission creates a latent ambiguity which may be explained by parol evidence showing the identity of the land." To the same effect are the decisions of this Court in Ladnier v. Ladnier, 75 Miss. 777, 23 So. 430, and Peacher v. Strauss, 47 Miss. 353. In the last case just cited, the Court propounded this question: "Can the absence, from the description of the land of the county and state, as appears on inspection of the deed, be supplied by parol?" After a comprehensive discussion of the proper answer to be given to such judicial query, the Court concluded that: "Upon general principles, as enunciated by modern authorities, and sustained by sound reason, that extrinsic evidence of the county and state, as proposed by the plaintiffs on the trial, ought to have been admitted, in aid of the description of the land mentioned in the deed, and claimed in the suit, in view, apparently, of other means of local identification." In the case at bar, the "other means of local identification" are "120 acres of land the Old Hatcher Place."
The foregoing conclusion by this Court is in line with general authority. The Illinois Court declared that: "A description omitting the town, county, or state where the land is situated may be sufficient if the deed provided other means of identification and particulars of description." Brenneman v. Dillon, 296 Ill. 140, 129 N.E. 564, 567. The same rule is announced in Ruling Case Law, vol. 8, Deeds, Sec 133, page 1077. The Texas Court said: "Appellee makes the point that the deed does not locate the Daniel Tatom preemption `in any nation, state or county.' This exception does not render the deed void." Brooks v. Temple Lbr. Co., Tex. Civ. App. 105 S.W.2d 386, 388. We are supported in our jurisprudence on this subject also by Reed on the Statute of Frauds, Volume 1, Secs. 409 — 416. See also Browne, Statute of Frauds, Vol. 1, Section 385, page 472. See also Section 90, page 217, Pomeroy's Specific Performance of Contracts; also Waterman on The Law of Specific Performance, Section 237.
We are, therefore, of the opinion that since the memorandum may be made certain by following up the clue to certainty therein given, and that omission of the state and county is a latent defect which may be repaired by extrinsic evidence where, as here, there are other means of local identification, the agreement involved here is not void for failure to meet the requirements of the statute of frauds, and the chancellor was correct in overruling the general demurrer, on that ground.
This brings us to the next attack upon the availability of this agreement, in a suit for specific performance, in that it does not sufficiently set forth the terms of the contract because it does not expressly provide the type of deed to be executed, whether quitclaim or warranty. The prayer of the original bill is for a warranty deed.
(Hn 3) In approaching this issue, it must be borne in mind that it is, subject to certain infrequent exceptions based on peculiar conditions, the general usage and custom of purchasers to demand and receive warranty deeds, in purchasing real estate, and this custom and usage should be taken into consideration here, in construing this instrument. It does not expressly promise merely a quitclaim deed, and the presumption, therefore, must arise that a warranty deed was intended.
On this subject, the rule appears to be, as it should, in good sense and reason, that "An agreement to sell and convey land is in legal effect an agreement to sell a title to the land, and, in the absence of any provision in the contract indicating the character of the title provide for, the law implies an undertaking on the part of the vendor to make and convey a good or marketable title to the purchaser. A contract to sell and convey real estate ordinarily requires a conveyance of the fee simple free and clear of all liens and encumbrances. There is authority that the right of the vendee under an executory contract to a good title is a right given by law rather than one growing out of the agreement of the parties, and that he may insist on having a good title, not because it is stipulated for by the agreement, but on his general right to require it. In this respect, the terms `good title,' marketable title,' and `perfect title' are regarded as synonymous and indicative of the same character of title. To constitute such a title the validity of the title must be clear. There can be no reasonable doubt as to any fact or point of law upon which its validity depends. As is sometimes said, a marketable title must be one which can be sold to a reasonable purchaser or mortgaged to a person of reasonable prudence," 55 Am. Jur. Sec. 149, page 619. See also Feemster v. May, 13 Smedes M. 275, 53 Am. Dec. 83; Union Planters Bank Trs. Co. v. Corley, 161 Miss. 282, 132 So. 78, 133 So. 232, 237, where the Court said: "It is familiar with every person conversant with modern conditions that one valuable thing in owning property is the ability to secure loans of money upon it, on reasonable terms. It is not the mere peaceful possession of property, but such a title as can be readily sold to another who is willing to buy on reasonable terms, or which can be mortgaged to secure loans on reasonable terms from persons having money to lend." This would be accomplished only where the title to be conveyed is in fee simple absolute, save in possibly exceptional situations and conditions not here present or where it is expressly agreed to the contrary. We think the Chancellor was correct in overruling the demurrer on that ground, where the original bill, as here, prayed a warranty deed.
The decree of the lower court will be affirmed and the cause remanded for further proceedings not in conflict with our views herein expressed.
Affirmed and remanded.