Fisher v. Wilson , 185 S.W.2d 186 ( 1944 )

I disagree with the majority ruling that the involved realty was not identified with such reasonable certainty as to support plaintiff's case in specific performance. It appears too clear for argument that the writings, if not complete within their four corners, at least furnished all data from which a complete identification of the subject matter can be obtained. Nothing is lacking therein except the legal description, and reference is made to defendant's abstract, which is in the record as extrinsic evidence, disclosing the realty to be Lot 13, Block N/2047, Perry Heights Addition to the City of Dallas; thus meeting the test referred to in majority opinion that a contract of sale of realty will be enforced when it either "describes the land intended to be conveyed, or within itself furnishes a key or means by which it may be identified with reasonable certainty." One of the instruments is captioned "Dallas, Texas," showing the property to be in said City and County; the other paper carrying defendant's `phone number showing her to be owner of the property known as 4328-4330 Cedar Springs Road, the subject of sale to plaintiff, whose earnest money is receipted for by the seller as part of the cash consideration, date of possession after examination of abstract being August 15, 1943.

Contracts far less definite in detail have been consistently upheld. See Morrison v. Dailey, Tex.Sup., 6 S.W. 426, 427, description "* * * my place, known as the `James Perry Tract of Land' * * *"; Cunyus v. Hooks Lumber Co., 20 Tex. Civ. App. 290, 48 S.W. 1106, 1107, "Kountze, Tex., * * * one certain tract of land, known as the `Vanmeter Survey,' being 2,000 acres, more or less"; Frazier v. Lambert, 53 Tex. Civ. App. 506,115 S.W. 1174, dated Dallas, Texas, property described as "Lot twenty-seven, Block 3/929, and better known as #126 McKinnon Street"; Beaton v. Fussell, Tex.Civ.App. 166 S.W. 458, "my place in [the town of] London, Kimble county, Texas, consisting of four lots"; Sorsby v. Thom, Tex. Civ. App.122 S.W.2d 275, 277, "Rock Island Plantation" and as "Cordsen Rock Island Ranch tract"; in last case the Galveston court holding "The description in the contract here involved was certain, in the sense that it was susceptible of being made certain by the extrinsic testimony pled and tendered * * *." In Krueger v. Ewing Co., Tex.Civ.App. 139 S.W.2d 836, 837, the contract of sale consisted of letters dated at San Antonio, describing the property as "San Gabriel Apartments," no other identification given. The suit was for specific performance, and description held sufficient, the court saying in such connection: "But a contract, we think, may also sufficiently describe property by its common or particular name by which it is known in the locality where situated. * * * The office of a description is not to identify the land, but to afford the means of identification, and when this is done, it is sufficient. Generally, therefore, any description is sufficient by which the identity of the premises can be established, or which furnishes the means of identification."

In Watson v. Baker, 71 Tex. 739, 9 S.W. 867, 868, cited by the majority, our Supreme Court held sufficient the following description aided by relevant parol testimony: "situated six miles N.W. from Mt. Vernon, Tex., consisting of 2,500 acres of land" and as "situated on the south side of White Oak creek, one mile from the bottom * * *." In Stroburg v. Walsh, Tex.Civ.App. 203 S.W. 391, 393, the court said: "For example, a deed to a lot may describe the same as lot No. 2, in block No. 15, in Austin, Tex., as shown by the map of said city, giving volume and page where same is recorded, and yet such deed would not convey to any one not familiar with such city any idea as to the location of such lot. But no one denies that its location might be proven by the oral testimony of any one who was familiar with the location of such lot. The same would be true if the lot was described as being located at the intersection ofcertain named streets, or if a tract of land was described with reference to certain natural or artificial monuments." (Italics mine). And in Spires v. Price, Tex.Civ.App. 159 S.W.2d 137, 139, the description was attacked as insufficient, the contract providing, however, for furnishing of abstract by seller. It was held: "further, the contract, properly interpreted, obligated the seller to furnish abstracts of title which was done, thereby, we think, rendering the description insaid abstracts available, if necessary, in aid of the description." (Italics mine.)

In 49 Am.Jur., Sec. 115, pp. 134, 135, is the statement: "A description merely as a street number of a named street in a named town has been held to be sufficient"; citing L.R.A. 1918C, which in turn contains annotations from some dozen American states to the effect that a street and house number designation of real property aided by extrinsic facts, fully satisfies the statute.

Surely, in view of the above applicable rules and authorities, there can be no doubt but that the instant contract description is adequate predicate for plaintiffs action; certainly so, when aided by the admitted extrinsic evidence; and the majority has erred in ruling to the contrary. "The statutes of frauds and conveyances look to the performance and not to the defeat of a contract." Wewerka v. Lantron, Tex. Civ. App.174 S.W.2d 630.

Relative to other conclusions of the majority, it will be noted that plaintiff's right of possession under the instruments was August 15, 1943, prior to which time her tender of the entire cash consideration to Mrs. Fisher persisted. The property was revenue bearing at all times ($95 per month), plaintiff having also bought the furnishings of the north apartment. The trial court found reasonable rental value of the space to be $52.50 for north apartment and $40 for the other, unfurnished; the judgment reciting that, as against the purchase money in court, plaintiff was entitled to a credit of $92.50 per month "as the reasonable rentals on said property exclusive of the portion thereof personally occupied and used by the defendant." This was a proper requirement, for, in decreeing specific performance in favor of the purchaser where the vendor has breached the contract and wrongfully remains in possession, the amount of purchase price may be offset by whatever benefits the vendor may derive from his wrongful possession; Crossland v. Hart, Tex. Civ. App.234 S.W. 558.

Plaintiff's tender into court was $6141.50 which, with the previous $300 of earnest money, made up the total consideration. Without dispute the sum of $1470.07 was found owing to Home Owners Loan Corporation as balance due on a first lien; and further judgment recitals awarded HOLC such amount from the registry fund, together with $92.50 per month to plaintiff from August 15, 1943, "to date of delivery of said property in accordance with this judgment." The majority holds invalid plaintiff's above judgment in the following particulars: (1) No evidence of probative force in support of these rental findings; (2) the contract making no provision for payment of first lien debt to HOLC, an outside party; and (3) no finality of judgment because "extending such recovery of rents beyond date of decree." I differ from the majority view in the respects just named. Defendant was a woman well experienced in real estate values and transactions, having made numerous deals both in Texas and California during past years; in the fall of 1943 making application for license as a real estate operator. Mrs. Fisher stated that the reasonable rental of apartment 4328, unfurnished, was $40 per month; the north apartment (4330) being presently occupied by tenants at $52.50 per month, its reasonable rental value was thereby established; the furnishings thereof belonging to appellee pursuant to such sale.

The decree was not objectionable because ordering payment of the first lien. Plaintiff's transaction with defendant was wholly for cash, out of which defendant's debt to the first lienor was properly deductible. "It is the general rule that, in a suit either by the vendor or by the purchaser to enforce a contract for the sale of real property where the incumbrance, the continued existence of which is not contemplated by the contract, can be discharged by mere payment and is not a larger amount than the purchase money due, the court may make provision for payment of the incumbrance out of the moneys that are payable to the vendor, and, in this connection, may direct that the amount should be paid directly to the holders instead of to the vendor, even though such holders are not before the court," Blaffer v. Powers, Tex.Civ.App. 169 S.W.2d 536, 539, 540. And such judgment is in all respects a final one. The court therein fully adjudicated the rights of both parties to the fund, leaving only to its clerk the ministerial duty of distribution.

Plaintiff's cause of action was primarily for specific performance, alternatively in breach of contract; and the court in exercise of its discretion upon trial submitted a damage issue, to which the jury answered $686.65. The court's favorable action on plaintiff's primary count rendered the jury issue on damages immaterial; the decree of specific performance being in effect a denial of damages, Crossland v. Hart, supra.

In this connection the majority appears to hold that, even though the contracts are susceptible of specific performance, yet plaintiff should have been limited to the finding of damages as better subserving the "ends of justice"; concluding the point, however, by discovering no proof in the record of probative force to sustain damages. The statement is there made that "suits for specific performance are based in equity as a matter of grace and not of right." If the rule announced is intended to include contracts for sale of real estate, again I disagree. Says the Commission of Appeals, Milliken v. Townsend, Tex.Com.App., 16 S.W.2d 259, 260: "Counsel for Mrs. Milliken insist that Townsend has an adequate remedy at law, in that a breach of Mrs. Milliken's obligations under the contract affords him cause of action for damages. This legal remedy is regarded in equity as inadequate when the subject-matter of the contract sought to be specifically enforced is real estate." See also Pom. Eq. 5th Ed. Secs. 221b, 1402. And though not material to the judgment under review, the jury's alternative finding had support in competent testimony relative to cash market values. Appellant vendor, upon examination by plaintiff's counsel, said:

"Q. Mrs. Fisher, in your petition you state that you advertised your place at $7500 at one time? A. Yes.

"Q. Is that the value you considered the place to be worth? * * * A. I would have sold it with one apartment furnished and one unfurnished, and that is the price I had on it.

"Q. At $7500? You considered that the reasonable price of the place with one apartment furnished and the other unfurnished? A. Yes.

"Q. Was that the price you considered at the time you said you advertised it at $7500? A. Yes."

The foregoing evidence is of probative force, Mrs. Fisher having had previous experience in real estate transactions, was the property owner, with presumably special knowledge concerning the matters about which she testified.

Lastly, the majority opinion holds that neither specific performance nor damages can be required of defendant because (1) "Defendant raised in pleading and proof pleas of equity excusing performance" and (2) that "Under the disclosed facts and circumstances equity would be better subserved not to enforce performance or to award damages on account thereof." Let us briefly examine the record, ascertain the nature of defendant's equity defenses, and view the facts and circumstances whereby a written obligation, voluntarily executed, has been thus excused. The majority finds that defendant was "insolvent" and in "ill-health," and that such were important factors in her favor. Defendant's pleading carries no allegations of ill-health; expressly denying insolvency and asserting that "while she is not a rich woman, she is able to satisfy her monetary obligations."

Aside from a plea that "August 15, 1943," was written into the contracts after execution (found against the appellant by the jury), the sole defense was that said sale was conditioned upon her finding another location as satisfactory as the premises in suit.

Defendant moved for instructed verdict and later for judgment non obstante; requesting no issues of fact, filing no objections to the court's charge or to the numerous judgment findings supplementing aforesaid jury verdict.

This record reveals a normal transaction in real estate, the contract price being arrived at by an owner willing but not obliged to sell, with a purchaser willing but not required to buy; entirely free of fraud, imposition or any hint of hard bargaining on part of appellee. Negotiations began with appellant's advertisement, viz.: "Owner leaving. Brick duplex, good rentals, home and revenue. J-88362," first asking $6950, final terms being agreed upon after several conferences. Defendant later deciding against removal to California, the instant controversy ensued. Except as pictured in appellant's brief, prepared by zealous counsel, I find no harsh, inequitable or oppressive features in the transaction sufficient to justify intervention by a court of equity; her defense actually emerging from a later change of plans, and a conclusion that the property was worth more. At this juncture, Mrs. Wilson might well have released the seller by acceptance of earnest money paid. It does not follow, however, that ipso facto a release may be judicially compelled. "Courts will not enter into an investigation and determine the wisdom of a bargain made by persons competent to deal with their own affairs." Bergstedt v. Bender, Tex.Com.App., 222 S.W. 547, 549: Simpson v. Green, Tex.Com.App., 231 S.W. 375; 49 Am.Jur., Sec. 60, p. 75. I "find no authority that would warrant a court of equity in this state to interpose its aid by declaring a moratorium against the enforcement of the terms of a solemn contract, voluntarily entered into by competent parties who are presumed to know the extent to which they bind themselves." Stone v. Watt, Tex.Civ.App. 81 S.W.2d 552, 555, writ ref.

No reversible error appearing, the judgment under discussion should be affirmed.