Mfg. Co. v. . Hendricks , 106 N.C. 485 ( 1890 )

There can be on question but that the possession of the defendant was notice of any equities which existed in his favor Edwards v. Thompson71 N.C. 177; Tankard v. Tankard, 84 N.C. 286.

But we think that his Honor erred in holding that the thirty acres mentioned in the agreement to convey had been sufficiently identified.

While the writing is very ambiguous in its terms, it is perhaps susceptible of being aided by extrinsic evidence. It, for instance, the testimony had shown that the particular thirty acres were known as the "Deaver Tract," it would have been a sufficient identification to have warranted the instruction given by the court. So far from this (492) being the case, the defendant himself testified that the thirty acres were "the balance of the Deaver Tract"; from which it must necessarily be inferred that the said tract was one out of which the thirty acres were to be taken. This feature, therefore, being eliminated from the case, there remains nothing by which the locus in quo can be located; for by reference to the plat it will be seen that, according to the description, it may be laid off in several different ways. Blow v.Vaughan, 105 N.C. 198, and the cases cited.

Nor is the defect remedied by the subsequent survey and the marking of the lines. It may well be doubted whether such acts can under any circumstances, aid a defective description of an executory contract to convey land, where, as with us, the doctrine of part performance is entirely repudiated. The furthest the court has gone in this direction is in Baxter v. Wilson, 95 N.C. 137. where effect is given to the contemporaneous running and making of lines and the establishment of corners for the purpose of correcting mistakes in the courses and distances called for in a deed, and by this means ascertaining the true intention of the grantor. This principle applies in cases where there is an evident mistake in the courses and distances given in the description, and not where, as in the present case, there is no such description at all. It could in no event avail the defendant, as the marking of the lines, etc., were not contemporaneous with the execution of the contract.

It is contended, however, that the agreement can be aided by the receipt given by W. L. Henry to the defendant in 1867. This would be so if the two papers could be connected without the aid of parol evidence. A valid contract within the statute of frauds, "may be of one or many pieces of paper, provided the several pieces are so connected, physically or by internal reference, that there can be no uncertainty as to their meaning and effect when taken together. But (493) this connection cannot be shown by extrinsic evidence." Mayerv. Adrian, 77 N.C. 83.

Here there is no reference in either paper to the other, and they are entirely consistent with the idea that they relate to distinct and independent transactions. Although the receipt could not be so connected with the agreement, we are of the opinion that it was in itself a sufficient memorandum in writing to warrant specific performance, provided that the land could be specifically identified by evidence aliunde.

In Farmer v. Batts, 83 N.C. 387, the Court decreed specific performance upon the following receipt:

"Received of W. D. Turner $1,400 in full payment of one tract of land containing 193 acres, more or less, it being the interest in two shares adjoining the land of James Barnes, Eli Robbins and others. This 25 January, 1864."

This is substantially the same in its terms as our's except that the payment is acknowledged to be in full. This difference does not alter its binding effect upon the vendor, as it is well settled with us that the consideration need not be set forth. Miller v. Irvine, 1 Dev. Bat., 103;Thornburg v. Masten, 88 N.C. 293. To this effect also is Gordon v.Collett, 102 N.C. 532, where a simple receipt in part payment of a certain described lot of land was held sufficient. See, also Breaid v.Munger, 88 N.C. 297.

These authorities, we think, fully sustain us in saying that the receipt is sufficient under 29 Chas. II.

No decree, however, for specific performance can be granted the defendant unless "his land where he now lives" (the descriptive words of the receipt) is fully identified by competent testimony. These words are clearly susceptible of being applied to a particular well-defined tract of land — id certum set, quod certum reddi potest — and if (494) the defendant can supply the requisite proof, he will be entitled to relief.

While the answer was sufficiently general (except, perhaps, as to the date of the contract) to have comprehended the receipt as a defense, this aspect of the case was not presented to the jury. The action seems to have been tried upon the agreement alone, and as we are of the opinion that there was error as to this, there must be a

New trial.

Cited: Deaver v. Jones, 119 N.C. 599; Smith v. Fuller, 152 N.C. 12;Bateman v. Hopkins, 157 N.C. 473; Speed v. Perry, 167 N.C. 126;Stockard v. Warren, 175 N.C. 286; Lewis v. Murray, 177 N.C. 20.