Summary
In Schmidt, the Ohio Supreme Court held "the description must be in itself capable of application to something definite before parole testimony can be admitted."
Summary of this case from Fairfax Homes, Inc. v. Blue Belle, Inc.Opinion
No. 31417
Decided November 3, 1948.
Specific performance — Real estate contract — Parol evidence inadmissible to furnish or correct a description — Contract must definitely point out particular land — Or furnish means of identifying land with certainty — Parol evidence inadmissible to supply deficiencies in description not identifying land.
1. In an action for specific performance of a contract to sell real property, parol evidence may not be admitted to furnish or correct a description of the property in the memorandum.
2. Parol evidence may be resorted to for the purpose of applying the description contained in a writing to a definite piece of property and to ascertain its location on the ground, but never for the purpose of supplying deficiencies in a description otherwise so incomplete or incorrect as not to identify the land. The description must be in itself capable of application to something definite before parol testimony can be admitted to identify any property as the thing described.
3. A contract for the sale of land must definitely point out the particular land to be conveyed or must furnish the means of identifying it with certainty. ( Kling, Admr., v. Bordner, 65 Ohio St. 86, approved and followed.)
CERTIFIED by the Court of Appeals for Summit county.
This was an action for specific performance brought by appellants and tried de novo in the Court of Appeals for Summit county, which court resolved the issues in favor of appellees and against the appellants, and the judges thereof certified the record of the case to this court as a conflict case.
The facts so far as necessary will be found in plaintiffs' (appellants') Exhibit 2, purchase agreement and receipt, as follows:
"Purchase Agreement and Receipt
"The Cotleur Realty Company
"Broadview Corner Royalwood Roads
"Brecksville, Ohio
"Oct 14 1946
"We, the undersigned do hereby offer and agree to buy the following described property S/w corner Broadview Newton rd 50 acres together with all buildings now on premises owned by H. C. Weston located in West Richfield twp deal to include manure spreader bin of oats (south bin) for which we agree to pay the sum of $20,000 on the following terms: Cash down, balance to be secured by ...... at ......% per annum, payable ........
"3 car garage to be used by grantee as soon as deal is escrowed. Hay barn to be available to grantee by Jan 15-1947
"Present owner to give good and sufficient deed and title to said property and furnish title guarantee for $20,000 showing same to be free from all encumbrances except current taxes.
"Deal to be held subject to township trustees permit or approval for slaughtering permit.
"Taxes to be pro-rated as of date of transfer.
"Insurance to be pro-rated as of date of transfer.
"Deal to be escrowed on or before November 1-1946.
"Possession of home and space for car given until Mar 1-1947 if necessary.
"Balance due $900.
"The Cotleur Realty Company is hereby recognized as broker in this transaction.
"This offer shall be open for acceptance by owner and if not accepted, the earnest money receipted below shall be returned to the purchaser without liability on the part of The Cotleur Realty Company to either party. When this offer is accepted by the owner it shall constitute a contract for the purchase and sale of said property herein provided. In case the purchaser conveys real estate as part payment in this transaction he hereby agrees to pay The Cotleur Realty Company the regular Cleveland real estate board commission on the above valuation of same.
"Purchaser: John Schmidt.
"Purchaser: Mary Schmidt.
"Witness: E. Cotleur.
"We, the undersigned hereby accept the above offer and acknowledge receipt of the $1,000 which is to apply on the purchase price.
"Seller: H.C. Weston
"Seller: Mary H. Weston
"Witness: E. Cotleur."
The Common Pleas Court had likewise found that plaintiffs (appellants) were not entitled to the relief prayed for and found in favor of the defendants (appellees).
The Court of Appeals received in evidence the transcript of the testimony taken in the Common Pleas Court and some additional evidence.
Messrs. Brouse, McDowell, May, Bierce Wortman and Mr. Charles R. Iden, for appellants.
Messrs. Buckingham, Doolittle Burroughs, for appellees.
The case before us is to be settled by the correct answer to the question, "Where a decree for specific performance is sought, may parol evidence be received to correct a discrepancy in the description of the land for which the decree is sought?"
We start with the premise that in an action for specific performance courts may apply but may not supply the description. No attempt was made to reform the contract.
So far as applicable here, the statute of frauds, Section 8621, General Code, provides as follows:
"No action shall be brought whereby to charge * * * a person * * * upon a contract or sale of lands, tenements, or hereditaments, or interest in, or concerning them, * * * unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing, and signed by the party to be charged therewith. * * *"
As aptly said by Judge Robinson in Jacobs v. Joseph E. Copp Co., 123 Ohio St. 146, 154, 174 N.E. 353, "Every statute of fraud contemplates the existence of a cause of action, which, but for the inhibition of the statute, might be maintained."
At first blush this may look like a harsh case but the following notations point out the lack of accuracy required in a case for specific performance, to wit:
1. There is no place or district known as West Richfield township. There is an unincorporated community or crossroads known as West Richfield but the evidence shows that the farm owned by appellees is approximately 1 1/4 to 1 1/2 miles from such crossroads.
2. There is a conflict in the evidence as to the ownership by appellees of any lands located at the southwest corner of Broadview and Newton roads. This involves evidence which we do not weigh. (Section 12223-31, General Code.)
In the case of Kling, Admr., v. Bordner, 65 Ohio St. 86, 61 N.E. 148, it was held:
"The memorandum in writing which is required by the statute of frauds (Section 4199, Revised Statutes), is a memorandum of the agreement between parties; and it is not sufficient unless it contains the essential terms of the agreement expressed with such clearness and certainty that they may be understood from the memorandum itself or some other writing to which it refers, without the necessity of resorting to parol proof."
That syllabus was approved and followed by paragraph one of the syllabus of Jacobs v. Joseph E. Copp Co., supra.
In the case of Sanders v. McNutt, 147 Ohio St. 408, 72 N.E.2d 72, it was said in the per curiam opinion at page 410:
"There can be no dispute upon the proposition that the memorandum must contain a description of the property. However, we are not prepared to hold that the property must be described with the particularity used in a deed or a formal contract."
The per curiam opinion did not question the applicability of the doctrine announced in Kling, Admr., v. Bordner, supra.
It was pointed out, however, in the Sanders v. McNutt per curiam opinion at pages 410 and 411:
"Keeping in mind that the instant case has not been tried and that we are now called upon to determine only the sufficiency of the amended petition as against a general demurrer, our consideration is not limited to the memorandum alone but to all the averments of such petition. * * * [Italics ours.]
"We think this amended petition discloses that there was a concluded agreement between the parties. It is quite clear from the facts alleged that defendant intended to sell the parcel of land located in the aforesaid township, county and state, known as 4228 New Portage road, for the sum of $12,500, and that the plaintiffs intended to buy that parcel.
"In view of the facts and circumstances (alleged and admitted by the demurrer to be true) preceding the making of the paper writing and the signing thereof by defendant, we conclude that the terms of the contract to sell are reasonably set forth; that the property is sufficiently identified as against a general demurrer * * *." (Italics ours.)
Counsel for appellants are in error if it is sought to convey the inference that reference was had to the memorandum in the instant case when they quote the following from Sanders v. McNutt, supra: " 'The letter (memorandum) furnishes the necessary evidence to prove the agreement in an action for its enforcement.' " Such statement was made by the court in the case of Heaton v. Eldridge Higgins, 56 Ohio St. 87, 101, 46 N.E. 638, 60 Am. St. Rep., 737., 36 L.R.A., 817, and is a part of the quotation from the Heaton case.
It is argued by counsel for appellants:
"The lower court should have admitted evidence offered by the plaintiffs in explanation of and to amplify the written memorandum in order to show the contract between the parties, since the statute of frauds merely requires some written memorandum as evidence of the contract to sell." (Italics ours.)
As said in Cushing v. Monarch Timber Co., 75 Wn. 678, 135 P. 660, Ann. Cas. 1914C, 1239, quoted with approval in Martinson v. Cruikshank, 3 Wn.2d 565, 568, 101 P.2d 604, 605: "Parol evidence may be resorted to for the purpose of applying the description contained in a writing to a definite piece of property and to ascertain its location on the ground, but never for the purpose of supplying deficiencies in a description otherwise so incomplete as not to definitely describe any land. The description must be in itself capable of application to something definite before parol testimony can be admitted to identify any property as the thing described." See, also, Craig v. Zelian, 137 Cal. 105, 106, 69 P. 853; and Daytona Gables Development Co. v. Glen Flora Inv. Co., 345 Ill. 371, 395, 178 N.E. 107, 116.
In the case of Wilson v. Fisher, 144 Tex. 53, 57, 188 S.W.2d 150, 152, it was said:
"The certainty of the contract may be aided by parol only with certain limitations. The essential elements may never be supplied by parol. The details which merely explain or clarify the essential terms appearing in the instrument may ordinarily be shown by parol. But the parol must not constitute the framework or skeleton of the agreement. That must be contained in the writing. Thus, resort to extrinsic evidence, where proper at all, is not for the purpose of supplying the location or description of the land, but only for the purpose of identifying it with reasonable certainty from the data in the memorandum."
In Marriner v. Dennison, 78 Cal. 202, 208, 20 P. 386, 389, the court said:
"But parol evidence cannot be heard to furnish a description. The only purpose for which such evidence can be heard is to apply the description given to the subject-matter."
If the agreement upon which the action is brought or some memorandum or note thereof in writing signed by the party to be charged therewith identifies the parties and their respective obligations and the land in question, courts will apply such terms and description even though parol evidence or evidence aliunde is necessary for the full understanding of the terms and descriptions set forth; but a court will not supply any deficiencies in the agreement, memorandum or note thereof, nor will a court be justified in correcting any of the terms where it is not sought first to reform such agreement, memorandum or note.
In the case at bar the land is described as being located in nonexistent West Richfield township. Counsel in their brief say: "We readily admit that a mistake was made by the real estate agent employed by appellees when the term 'West Richfield twp.' was used." The agreement does not give the township, county or state in which the land is located. The agreement is contained in a writing containing the following heading: "The Cotleur Realty Company, Broadview Corner Royalwood Roads, Brecksville, Ohio, Oct. 14, 1946." Brecksville is located in Cuyahoga county. The property for which a decree in specific performance is sought is not claimed to be in Cuyahoga county. On the contrary it is claimed that the property about which the agreement was drawn is located in Summit county.
In 19 Ohio Jurisprudence, 605, Section 78, it is said:
"The memorandum must contain a description of the subject matter; an omission thereof is a fatal defect. If an insufficient description is given or there is no description, oral evidence is not admissible in aid of the memorandum, because the court will never receive such evidence both to describe the land, and then to apply the description."
As no attempt was made to reform this contract we are left to determine whether or not the contract as originally drawn is subject to a decree for specific performance.
A decree for the conveyance of land, if a deed is not executed within the time limit, operates as a conveyance. Therefore, in order that a contract may be enforced by specific performance we must find within the four corners of the note or memorandum identification of the land in question. We must apply the description set forth in the contract and we may not supply any other description.
We do not mean to hold that proof aliunde may not be resorted to in certain cases so long as it is consistent with the description in the contract or memorandum, but we do mean to hold that where there has been no reformation of the contract and the contract contains as a part of the description the location of the land in a nonexistent township, a decree for specific performance will be refused as such a decree locating the land in a nonexistent township could not. stand as a transfer of any particular land and even a deed given by the defendants (appellees) in pursuance of such decree would not properly identify any land. We do not find it necessary to examine or discuss whether any tender was made to Mary H. Weston, the codefendant.
For the first reason given by the Court of Appeals for denying relief to appellants (plaintiffs), to wit, "That the memorandum relied upon by the appellants is insufficient under the statute of frauds," the decree of the Court of Appeals should be and hereby is affirmed.
Decree affirmed.
WEYGANDT, C.J., MATTHIAS, HART, ZIMMERMAN, SOHNGEN and STEWART, JJ., concur.