Tolbert v. Short

Hill, J. (After stating the foregoing facts.) 1. The petition was not subject to the general demurrer on the .'ground that the description of the land set out in the contract was too vague and indefinite. In Clark v. Cagle, 141 Ga. 703 (2), 704 (82 S. E. 21, L. R. A. 1915A, 317), it was held: “Where a contract for the sale and purchase of a tract of land was dated at White Plains in this State, and described the property as the place of the vendor known as the ‘Humphrey Place’ containing 330 acres, more or less, this description was not so vague and indefinite as to render the contract unenforceable. The description could be applied to its subject-matter by alleging and proving that the vendor had a described tract of land containing the number of acres mentioned, located near White Plains, in a named county, and known as the ‘Humphrey Place,’ and that this was the only place in that county known by that description.” It will be seen that the Clark ease is similar in its facts to the case being reviewed. In-each ease the contract is preceded by a given date and the name of the town and State wherein the contract was executed j and it was held in the Clark case that the description was not so vague and indefinite as to render the contract unenforcible. King v. Brice, 145 Ga. 65 (88 S. E. 960), was a ease where the following contract was sued upon to recover damages for its breach, viz,: [418] “$100.00. Atlanta, Ga., July 2, 1913. “Received of R. D. & C. S. King one hundred 00/000 dollars as part purchase-money on the following described property: 26 Ponce de Leon Ave. 70 x 185 & 15 foot alley included, which, on and for account of the owner and vendor, we have this day sold to the purchaser above named, subject to the titles being good, for the sum of $40,000.00 forty thousand dollars to be paid as follows: five thousand cash 5,000 Bal. 1-2-3-4 years, 6% 14,250 Assumed indebtedness 20,750 40,000.00 M. C. Kiser Real Estate Company, per H. K. “I hereby agree to purchase the above-described property on terms and conditions above named. R. D. & C. S. King, R. D. King, purchaser. “I hereby approve of the above-mentioned sale on the terms and conditions named, and agree to pay to M. C. Kiser Real Estate Company, real-estate agents, on the date formal transfer is made a commission of..................dollars. John A. Brice, owner and vendor.” In that case it was held: “ The description of land in a contract of sale is sufficiently definite where the premises are so described as to indicate the grantor’s intention to sell a' particular lot of land. Where the contract indicates that a particular tract is intended to be conveyed, its practical identification can be proved by extrinsic evidence. The description of the property mentioned in the contract of sale, appearing in the first division of the opinion, is sufficiently definite to form the basis of a suit for recovery of damages from a breach of the contract.” From the foregoing authorities we hold that the court did not err in overruling the demurrer. 2. The court charged the jury “that where the contract in question describes the land as a tract of land containing seventy-three acres, more or less, known as the Hartly place, adjoining lands of Mrs. Lipscomb, W. L. Ragan, and others, that those words are ambiguous and do not of themselves distinctly identify the land that was the subject of the sale, and the law allows parol evidence to be admitted to the jury for the jury toi determine [419] whether with the aid of parol evidence they may be able to ascertain what was the particular and certain tract of land that was the subject-matter of the contract.” Error is assigned upon the instruction that the words in the contract were ambiguous; whereas it is insisted that they were vague and uncertain, and the court therefore erred in construing the contract as being an ambiguous one. The evidence showed that there were two tracts of land, each containing seventy-three acres, to which the description in the contract was equally applicable, and therefore the contract contained a latent ambiguity. While evidence is inadmissible to add to, take from, or vary a written contract, all the attendant circumstances may be proved; and if there is an ambiguity, latent or patent, it may be explained. Civil Code (1910), § 4268. “Where the description applies equally to several tracts, a latent ambiguity results, which may be explained by showing which one of the several tracts was claimed by the grantor.” 2 Devlin on Real Estate (3d ed.), 2026, § 1043; 25 R. C. L. § 283, middle section p. 652, and citations under note 14; Clark v. Powers, 45 Ill. 283. Therefore the charge' complained of contains no error which requires a reversal. 3. Exception is taken to the following "charge of the court: “Is there a place that was owned by the defendant on the day that the'contract was entered into, known as the Hartly place and a place which adjoined the lands of Mrs. Lipscomb, W. L. Ragan, and others? If you find from the evidence that there is such a place, then you would be authorized to find a verdict that the parties intended that place to be the subject of this contract; provided that if you find from the evidence also that there were two Hartly places and that both of the Hartly places contained seventy-three acres, more or less, and both of them adjoined the lands of Mrs. Lipscomb and W. L. Ragan, then you would inquire further 'as to whether the defendant was the owner of both of these places on the day that the sale was made. If he was the owner of both of them, then it is impossible to be determined which one of the places was the subject of the* sale, if they contained substantially the same number of acres, both known by the same name and both adjoined the same landowners. And if-they both belonged to the defendant, then there could be no decree in this ease and the contract would be void for uncertainty. But [420] if you find from the evidence there were two Hartly places, that is, two places known as the Hartly place, and that each of them contained substantially 73 acres and that each of them adjoined the lands of Lipscomb, Eagan, and others, but that the defendant owned one on the day the contract was made and did not own the other, then you would be authorized to find that the defendant and the plaintiff were contracting about property which the defendant owned, and not about property which he did not own.” It is contended that by the use of the words, “is there a place that was owned by the defendant,” and the further language that the jury “would be authorized to find a verdict that the parties intended that place to be the subject of this contract,” the court added to the contract a term it did not contain, viz., the property owned by the defendant. These exceptions are without merit. The evidence shows that there were two tracts of land known as the “Hartly place,” adjoining lands of Mrs. Lipscomb, "W". L. Eagan, and others; and it also shows that the defendant owned only one of the Hartly places containing 73 acres; and extrinsic evidence was therefore admissible to show which one of the places was owned by the defendant. 4. Other headnotes do not require elaboration. Judgment affirmed. All the Justices concur.