Opinion
No. 4273.
December 1, 1932. Rehearing Denied December 15, 1932.
Appeal from District Court, Gregg County; Reuben A. Hall, Judge.
Suit by H. T. Neal and wife against P. T. O'Herin, wherein the defendant filed a cross-action. From a judgment in favor of the plaintiffs, the defendant appeals.
Affirmed.
On the 26th day of February, 1931, appellant, P. T. O'Herin, filed for recordation among the deed records of Gregg county, Tex., a purported contract, written and signed with pencil upon a small piece of yellow paper, wherein O'Herin agreed to pay H. T. Neal $750 for one-fourth interest in royalty, and appellee H. T. Neal agreed to deliver for that amount of money a royalty deed for "one-fourth interest in the 41 1/2 acres lying northeast of Kilgore, Texas, and joining the West Daniel land." The instrument bore no acknowledgment, but was attached to an affidavit made by appellant to the effect that he purchased from H. T. Neal "one-fourth the royalty undivided in and to 41 1/2 acres of land belonging to H. T. Neal, situated in Mary Van Winkle Survey northeast of the town of Kilgore in Gregg County, Texas, and adjoining the West Daniel land," that he had in due time offered to perform his contract and pay the stipulated purchase price, but that Neal had refused to carry out the contract, and the public was warned of affiant's rights in the property.
This cause was instituted by appellees H. T. Neal and wife, Melissa Neal, to remove cloud from title to 41 1/2 acres of land on the Mary Van Winkle survey in Gregg county, described by metes and bounds in plaintiff's petition. They alleged that the penciled contract with O'Herin was void, because, among other reasons including fraud, "no property is described in said contract, and said contract is void for want of description," but that the recordation of said contract along with the affidavit accompanying it cast a cloud upon the title to their property, and prayed that it be removed.
Appellant answered by general denial and exceptions and cross-action over against appellees alleging the contested instrument to be a bona fide contract, made in good faith, valid in every respect, and prayed for specific performance.
The case was tried before a jury, and at the conclusion of the testimony the trial court refused to permit the introduction of the contract in evidence, and instructed a verdict for appellees.
Campbell, Lee, Taylor Leak, of Longview, for appellant.
George Prendergast, of Marshall, and Edwin Lacy, of Longview, for appellees.
Appellant presents as grounds for reversal the action of the court in holding the contract inadequate and insufficient to form the basis of an action for specific performance. The contract reads as follows:
"I am to pay H. T. Neal $750.00 for one-fourth interest in royalty.
"[Signed] P. T. O'Herin.
"I will deliver to P. T. O'Herin for $750.00 J. Z. Form without change a royalty deed for one-fourth interest in 41 1/2 acres laying north-west of Kilgore, Texas, and joining the West Daniel Land.
"[Signed] H. T. Neal.
"Same to be executed on or before 2/23/1931."
It will be noted that the instrument is not dated. It has no caption, is not acknowledged, and does not otherwise indicate when or where it was executed. It carries no field note description, and does not name the head-right, the county, or the state within which the land referred to is located. It does not indicate whether it refers to land which Neal owned in fee, or to land upon which he happened to own mineral or royalty rights. The instrument within itself does not describe any land, nor does it furnish a key by which the land may be identified. It does not state in what county Kilgore is located, and we presume the fact would have been proven if Kilgore had been an incorporated town in this state. Cassidy-Southwestern Commission Company v. Chupick Bros. (Tex.Civ.App.) 225 S.W. 215.
To form a proper basis for a suit for specific performance, a contract should be sufficiently definite and specific in its terms to reasonably define within itself the rights of the respective parties thereto. A prayer for specific performance of a contract for the sale of land, or interest in land, will not be heard unless the contract describes the land to be conveyed, or within itself furnishes the key or means by which the land may be identified. Patton v. Rucker, 29 Tex. 409; Jones v. Carver, 59 Tex. 293; Whitehead v. Reiger (Tex.Com.App.) 6 S.W.2d 745. Resort to extrinsic evidence where proper at all is for the purpose of identifying the land from data given in the contract, and not for the purpose of supplying the location or description. Higgins v. Bankers' Mortgage Company (Tex.Com.App.) 13 S.W.2d 683.
We believe the contract of sale involved in this case and quoted above is void for patent ambiguity, and that the trial court did not err in excluding it.
The judgment below is therefore affirmed, and all costs adjudged against the appellant,