Satterfield v. Speir

Fish, J. The controversy arose over the proper location of a tract of forty acres of land purchased by the plaintiff’s intestate, Mrs. Emily P. Stegall, from Speir, one of the defendants. In his suit the plaintiff invokes the aid of equity in construing, or reforming, the description of this tract of land, contained in a bond for titles which Speir gave to Mrs. Stegall. The court below sustained two demurrers to the petition, a joint demurrer filed by two of the defendants and a separate demurrer filed by the other defendant, and dismissed the case as to all the defendants; and we are to determine whether the court erred in so doing. Irrespective of any other questions made by the' demurrers, we think that they were properly sustained for want of equity in the petition. A fatal defect in the petition is that the plaintiff fails to allege what particular tract of forty acres of land his intestate purchased from the defendant Speir. His allegations furnish no description by which to definitely locate and define the tract. His allegations in reference to the tract of land that the parties to the contract intended, their understanding and the understanding of all the defendants with reference thereto, at the time the contract was entered into, the representations of Speir as to the character and location of the tract, taken all together, utterly fail to distinctly describe any particular tract of land.' These allegations amount to simply this: that the forty-acre tract was to be laid off in the Speir farm, in the 21st district and 2d section of Cherokee county, in that portion of the farm lying on the east side of the Etowah river; that it was to be practically square in shape, to be bounded on the west by the river, and so laid out as to include within its boundaries only fertile river-bottom land; and that Speir pointed out the location of this tract as being within a large body of fine, fertile river-bottom land lying just north of and adjacent to some ten or fifteen acres of worthless land which are embraced in a triangular or wedge-shaped space formed by the river on the one side and a certain branch and an old ditch running therefrom to the river on the other. It needs no argument to demonstrate that it is impossible to derive from these allegations a definite description of any particular forty acres [89] of land. No surveyor could take them, and, guided by them alone, lay out this tract of land. No court could take them, and, guided by them as setting forth the true contract between the parties, frame a decree which would be sufficiently definite and certain in its description of the land intended to be conveyed to identify the premises. If a deed were executed in accordance with these allegations, it would be void for uncertainty in the description of the land. In his prayer for the construction of the contract, and his prayer for its reformation, the plaintiff furnishes a more definite description of the land; but even here it is very doubtful whether the description is sufficient. But, however this may he, the fatal defect in his allegations can not he cured by his prayers for relief. The ■court can not make a new contract for the parties, but can only deal with the contract as they made it. If, as seems to appear from the petition, upon attempting to lay off the forty acres of land according to the description' contained in the bond for titles, .a latent ambiguity in such description was discovered, which ambiguity the plaintiff desired cleared away by a verdict and a decree •of the court, it was incumbent upon him, by proper allegations, to show to the court what particular tract of land the description in the bond -for titles was intended to cover. If a mistake was made by the parties to the contract in describing the land, and the plaintiff wished the bond for titles reformed so that it should properly ■describe the land which his intestate really purchased from Speir, he should, by his allegations, have distinctly pointed out to the •court the particular land which was the subject-matter of the contract. The plaintiff’s allegations in reference to the forty-acre tract •of land which Iris intestate purchased from Speir were too vague and uncertain to identify any particular body of land as being the one which was embraced in the contract as entered into by the parties. Admitting these allegations to be true, no ease was presented for the construction or reformation of the contract by a court of equity. Of course, there was no necessity whatever for the plaintiff to •come into a court of equity in order to set up any defense which he may have to a suit by Speir against him as surety upon the notes. If the plaintiff has any good defense to these notes, by reason of any misrepresentations by Speir which induced him to sign •the notes, it will be time enough for him to set it up when Speir institutes such a suit, and he can then get the full benefit of it. [90] There was no error in sustaining the demurrers and dismissing the case. Judgment affirmed. All concurring, except Little, J., absent.