Percival v. Cooper

ELLETT, Justice: Plaintiffs sued defendants, asking that defendants be ordered to specifically perform and to convey by warranty deed a one-half acre of land. Plaintiffs did not ask for rescission or for damages.1 Defendants had advertised for sale one-half acre. Plaintiffs paid $1,000 as earnest money and received a receipt indicating that the money was on one-half acre building lot. Before the earnest money was paid, the land was pointed out to plaintiffs by defendants, and they examined it. The property was to be surveyed in order to obtain the proper description, and the parties were each to pay one half of the survey fee. The defendants told the plaintiffs that the east line of the property being sold would have to be eight feet west of an old building located on the land being retained by defendants.2 Mr. Percival was present when the survey was made and expressed satisfaction with the land included in the survey. The plaintiffs paid the purchase price and received, the warranty deed pursuant to the survey, a copy of which they already had. The deed described the land by metes and bounds as a rectangular area 114.5 feet by 165 feet. It did not indicate the area of the property either in square feet or by acreage. Later plaintiffs discovered that they could not erect a duplex and keep horses on the property unless they owned at least one-half acre of ground. They then commenced this suit. The plaintiffs proved at trial that the defendants represented that they were selling one-half acre of land, and the trial judge ordered the defendants to convey by warranty deed certain described property containing an area 132 feet by 165 feet. [42] The law is stated in 23 Am.Jur.2d, Deeds §§ 249 and 250, as follows: Parol evidence is admissible to show that a mistake was made in the description of the land in. question where there are sufficient other facts in the description to identify the land. However, the purpose of admitting extrinsic evidence with respect to the description of a deed is to explain an ambiguity or to locate the property conveyed on the ground, not to alter or contradict the instrument; hence a court may not, on the theory of correcting an ambiguity, in effect reform the deed. Where the description of premises conveyed in a deed is definite, certain, and unambiguous, extrinsic evidence cannot be introduced to show that it was the intention of the grantor to convey a different tract or that he did not intend to convey all of the land described. Hence, generally speaking, neither party can show by extrinsic evidence that more or less passed than is described in the deed referred to. Evidence which purports to show that the grantor intended to convey land different from that which, by unambiguous words, the deed purports to convey will not be received. In other words, where there is no inconsistency on the face of a deed, and, on application of the description to the ground, no inconsistency appears, parol evidence is not admissible to show that the parties intended to convey either more or less or different ground from that described. There was no ambiguity whatsoever in the deed given. Plaintiffs got the very land which was pointed out to them and which was surveyed in Mr. Percival’s presence. If he had used simple arithmetic, he would have found that the deed conveyed only 18,850 square feet of land.3 These plaintiffs got what their deed calls for, and they cannot get more by way of a suit for specific performance when the land covered by the deed has already been delivered. The judgment is reversed. Costs are awarded to the appellants. CALLISTER, C. J., and HENRIOD and TUCKETT, JJ., concur. Footnotes [1] Plaintiffs admit in their pleadings that defendants offered to pay hack the purchase price, but plaintiffs refused to accept it. [2] In order for the defendants to remodel the old building as they intended, the zoning ordinance required the building to be set back at least eight feet from the property line. [3] An acre of ground contains 43,560 square feet and, therefore, one-lialf acre would contain 21,780 square feet.