Docter v. Hellberg

Cassoday, J. The answer and reply need not be considered, since the only questions presented upon this demurrer [421] ore tenus arise upon the sufficiency of the complaint when liberally construed. Doud v. W., P. & S. R. Co. ante, p. 108. The mere fact that the agreement to convey was signed by the defendant alone will not prevent specific performance if it was otherwise sufficient. The statute only required that the contract for the sale should be in writing expressing the consideration, and be subscribed by the party by whom the sale was made. See. 2304, R. S.; Cheney v. Cook, 7 Wis. 413; Vilas v. Dickinson, 13 Wis. 488; Washburn v. Fletcher, 42 Wis. 169. The agreement in writing to convey, in effect, acknowledged the receipt of the $100 as part purchase money, ior forty-nine acres of land, with buildings and improvements thereon, situated in the town of Wauwatosa, state of Wisconsin, being the same then occupied by the defendant, for which she thereby promised to deliver deed in sis weeks. The agreement was to convey the land, buildings, and, improvements then occupied by her in the town named. It was the land then so occupied, and the whole of it, that was to be conveyed. No reference was made in the writing to any land not so occupied at the time. Such occupation, so referred to upon the face of the agreement, purported to be an existing extrinsic fact, the proof of which would give certainty to the description. Simmons v. Johnson, 14 Wis. 526. Such proof was .admissible in order to place the court in the position of the parties at the time of making the agreement, and thus enable it to intelligently'''interpret the language employed. The law will not declare an agreement void for uncertainty when the light which contemporaneous facts and circumstances furnish renders the description definite and certain. Messer v. Oestreich, 52 Wis. 689; Whitney v. Robinson, 53 Wis. 314; Parkinson v. McQuaid, 54 Wis. 484; Meade v. Gilfoyle, 64 Wis. 18. A description which can thus be made certain by proof of an extrinsic fact referred to in the agreement must be regarded as sufficiently certain to enforce specific performance. [422] The plaintiffs here insist that there was a deficiency of sixteen and one half acres in the amount named in the agreement ; that they are entitled to a conveyance of the land which the defendant actually owned and occupied at the time, upon the payment and security of the purchase price, less what such deficiency would come to at $414.28 per acre, which would have been the average price had there been as many acres as named in the agreement. The amount which the plaintiffs thus claim the right to abate from the purchase price is $6,835.62. The question here presented is whether the plaintiffs are entitled to a deed of the land owned and occupied by the defendant at the time without fully paying and securing the purchase price as provided in the agreement. Or, in other words, is the defendant obliged to convey as required upon the plaintiffs’ only paying and securing what would remain of the purchase price after ipaking the abatement indicated ? It will be observed that the number of acres mentioned in the agreement is not by way of limitation nor restriction. The agreement does not purport to be for the conveyance of forty-nine acres from a larger tract. The number of acres mentioned in the agreement purports to be descriptive, but in no way aided the description. The agreement was simply to convey the land then occupied by the defendant,— nothing more. If the land so occupied did not contain as many acres as mentioned in the agreement, then such mention, to the extent of the deficiency, was a false assertion. Assuming it to have been false, yet as it in no way aided the description, and the land was-otherwise sufficiently described, it cannot frustrate the agreehient. Thompson v. Jones, 4 Wis. 110; McEvoy v. Loyd, 31 Wis. 142. But the more serious question is whether such mention is tp have the effect of a written guaranty or covenant that the farm so occupied did in fact, at the time, contain the number of acres mentioned. The defendant insists that the mention of the number of acres cannot be regarded as a [423] ■covenant' of quantity, and numerous authorities are cited in support of such contention. There are certainly numerous eases in which it has been held that an action for a breach of warranty could not be maintained merely because the quantity of land conveyed by the deed was less than the amount therein stated. Snow v. Chapman, 1 Root, 528; Mann v. Pearson, 2 Johns. 37; Powell v. Clark, 5 Mass. 355; Perkins v. Webster, 2 N. H. 287; Beach v. Stearns, 1 Aikens, 325; Roat v. Puff, 3 Barb. 353. The converse of the proposition has also frequently been held. McEvoy v. Boyd, supra; Howe v. Bass, 2 Mass. 380; Pernam v. Wead, 6 Mass. 131; Jackson v. Barringer, 15 Johns. 471; Jackson v. McConnell, 19 Wend. 175; Butterfield v. Cooper, 6 Cow. 481, Hathaway v. Power, 6 Hill, 453; Pettit v. Shepard, 32 N. Y. 97. In the class of .cases first cited it is held that the covenants only relate to the lands described, but not to lands which the deed does not purport to convey. It may be doubtful whether an agreement to convey is of any broader significance than the covenants of warranty in such a deed. Upon this demurrer ore tenus we do not feel called upon to determine the question suggested, as the case may, upon final hearing, disclose a different state of facts. "We may assume for the purposes of this case, that the law is the other way, and that the agreement in writing was a guaranty that the land therein described contained the number of acres therein mentioned, and that the plaintiffs are entitled to a conveyance of the-land owned, and an abatement from the purchase price by reason of the déficiency, as in‘dicated in the authorities. Wright v. Young, 6 Wis. 127; S. C. 70 Am. Dec. 453, and notes; Walling v. Kinnard, 60 Am. Dec. 216; Conrad v. Schwamb, 53 Wis. 378. But still the question recurs whether the plaintiffs are entitled to such conveyance upon the arbitrary conditions proposed in the complaint. It is to be remembered that courts of equity do not make contracts for parties, but merely enforce such [424] as are made by themselves, so far as practicable, and in so far as may seem to be just and equitable. This court has held that in the absence of fraud, “ where the title fails to only a part of the land conveyed, the grantee may recover, in an action on the covenants of seizin and right to convey, or upon an agreement to convey, such fractional part of the whole consideration paid as the value at the time of the purchase of the piece to which the title fails bears to the whole purchase price, and interest thereon during the time he has been deprived of the use of such fractional part, but not exceeding six years.” Messer v. Oestreich, 52 Wis. 696; Bartelt v. Braunsdorf, 57 Wis. 3; Willson v. Willson, 57 Am. Dec. 320. Assuming the plaintiffs’ right to specific performance and abatement of price on account of deficiency, as claimed, still they would not be entitled to any more favorable rule than the one just indicated; that is, an abatement of such fractional part of the whole consideration to be paid as the value at the time of the purchase of the piece to which the title failed bears to the whole purchase price. It stands confessed that the buildings and improvements are all on the land owned by the defendant, and it would be unfair to presume, in the absence of any allegation of proportionate values, that the portion of the land not improved is of equal value per acre with that which is improved. Such is the theory of the complaint and the conditions upon which specific performance is sought to be enforced. The plaintiffs having failed to allege performance or tender of performance on their part, even upon the assumptions indicated, are in no position to enforce performance upon the part of ■ the defendant. By the Court.— The judgment of the county court is affirmed.