Hannon v. Scanlon

IveewiN, J. The stipulation upon which the cause of action rests was made in open court and was not signed by the parties otherwise than as their names appear therein as writ [360] ten and entered in the minutes by the reporter. It is insisted by appellants that there was a sufficient signing of the stipulation to satisfy the statute of frauds by the entry thereof in open court and consent to such entry by all parties. And it is further contended by appellant? that, whether there was a sufficient signing or not, there was estoppel in pais and of record arising- from the acts of the parties in open court with the sanction of the court, and proceedings in court upon the faith of the stipulation, and that the stipulation was sufficiently definite in the description of the property. On the part of respondent it is claimed that the stipulation is void as against public policy under the rule laid down in Will of Dardis, 135 Wis. 457, 115 N. W. 332, and Will of Rice, 150 Wis. 401, 136 N. W. 956, 137 N. W. 778; that the stipulation is void under the statute of frauds; that there is no estoppel in pais or of record; and further that the stipulation is too indefinite and uncertain upon which to found an action, therefore no cause of action is stated in the complaint. We shall only consider the last proposition, namely, whether the stipulation is sufficiently definite and certain to form a basis for an action upon the facts alleged in the complaint. If this proposition be resolved against the appellants it is decisive of the case. It is argued that there is no description of the two forty-acre tracts which were to be deeded to the two children. But passing this question, it is clear that it cannot be determined from the stipulation, together with any writings referred to therein or which could be read therewith, which forty was to be deeded to either child. The stipulation provides “that he, the said Joseph Scan-lon, convey by proper conveyance to each of the said minor children one of the forty acres of land heretofore owned by iíenry Donnelly, deceased, which said property is devised and bequeathed by the will of said Lucy Scanlon, deceased, to the said Joseph Scanlon. . . .” There is nothing in the [361] stipulation identifying the forty which shall be deeded to either child. The alleged contract is one for the conveyance of real estate, and all its essential terms must be in writing. Among other essential terms which must be specified in a contract for the conveyance of real estate is a description of the property to be conveyed. Here the contract is hopelessly uncertain as to which forty should be conveyed to each party. The court cannot supply this important part of the contract, because to do so would be to make and enforce a contract for the parties which they themselves never made. Nor can parol evidence bo allowed to supply an essential element of a contract to convey land which the statute requires to be in writing. It is argued by appellants that the court should enforce specific performance so far as the contract is certain and that it would be doing justice to enforce conveyance of the two forties to the two infants in common. The trouble with this argument is that there is no agreement, either express or implied, that the two forties be conveyed in common. On the contrary it is expressly provided that one forty be conveyed to each infant. To compel conveyance of the two forties in common would be to enforce performance of a contract which the parties never made. This courts have no power to do. It follows that the order appealed from must be affirmed. By the Gourt. — The order appealed from is affirmed.