Schweitzer v. Crandell

Hart, J., (after stating the facts). It is first insisted that the decree should be reversed because there is no proof that H. A. Orandell died intestate and that the persons named in the amended complaint are his sole heirs at law. It is true that the answer denies that the plaintiffs in the amended complaint are the heirs at law of H. A. Orandell, deceased, but the answer contains a caption in which the plaintiffs are named as heirs at law of H. A. Orandell, deceased. This answer was filed after the court had entered of record an order in which it had recited that the death of H. A. Orandell was proved and that the cause- was revived in the name of his heirs, who are specifically named in the order, and who are the identical persons named in the amended complaint and in the caption to the answer of the defendant, Mae Schweitzer. In addition to this, the record shows that the defendants did not insist npon this point at the trial. The court was not asked to make any findings on this point, and no reference was made to it throughout the trial. The proof was directed to the ground upon which the defendant predicated her defense. Under these circumstances the defendant, Mae Schweitzer, will be deemed to have waived this point. Allen-West Commission Co. v. People’s Bank, 74 Ark. 41, 84 S. W. 1041. It will be noted that the case just cited was tried in the circuit court, and the case at bar was determined in the chancery court. We think, however, that the principle applied in the law case will apply here under the facts just stated. Counsel for the defendants rely on the defense that the memorandum in writing relied upon by the plaintiff for recovery is too indefinite, under the rule laid doAyn in Richardson v. Stuberfield, 168 Ark. 713, 271 S. W. 345, where it was held that an agreement for the sale of land, which is required to be in writing by the statute of frauds, must be certain in itself or capable of being’ made certain by reference to something else. The memorandum in writing relied upon by the plaintiff is copied in our statement of facts and need not be repeated here. Extrinsic evidence is admissible to explain the calls of a deed for the purpose of identifying the land described and thus give effect to the deed. It is true that, under our decisions, a deed must so describe land sought to be conveyed that it may be identified, yet it is considered that that is certain which can be made certain, and in construing a doubtful description in a deed the court will put itself in the position of the contracting parties as nearly as possible and interpret the language used in the light of the attendant circumstances. Scott v. Dunkel Box & Lbr. Co., 106 Ark. 83, 152 S. W. 1025; Snyder v. Bridewell, 167 Ark. 8, 267 S. W. 561. The extrinsic proof in this case locates the land described in the written memorandum set out in our statement of facts as being an addition which Schweitzer had platted into lots and blocks and called “Schweitzer Addition to the Town of Harrison.” The addition, as laid into lots and blocks, ivas advertised in printed circulars to be sold as lots and blocks by L. H. Schweitzer. The memorandum in question was written upon one of these circulars and upon that part of it upon which Schweitzer had specifically described the lots and blocks in his platted addition. The circular contains an advertisement by Schweitzer in which it is referred to as being platted into lots and blocks. Under the rule announced in the cases cited, with the information contained in the written memorandum, in connection with the attendant circumstances, a surveyor could lo.cate the ' ground described in the memorandum. Hence the memorandum is a valid and binding one, and is not void under the statute of frauds above referred to. It follows that the decree of the chancery court was correct, and should be affirmed. It is so ordered.