Ashcraft v. Tucker , 136 Ark. 447 ( 1918 )

Hart, J.,

(after stating the facts). The first contention of the defendant is that the contract, being unilateral or optional, can not be enforced even in a court of equity for want of mutuality. It is well settled in this State, as elsewhere, that an optional contract based upon a valuable consideration does not lack mutuality and that equity will compel .a specific performance of such a contract when it has been accepted by the party seeking to enforce it. Meyer v. Jenkins, 80 Ark. 209; Indiana & Ark. Lumber & Mfg. Co. v. Pharr, 82 Ark. 573; Mier et al. v. Hadden (Mich.), 12 A. & E. Ann. Cas., p. 88 and note; Cummins v. Beavers (Va.), 106 Am. St. Rep. 881 and note.

In the present case the contract does not contain any description whatever of the property. It is true that it has often been judicially declared that the main office of the description in' a deed is not to identify the land conveyed, but to furnish means of identification. In the application of this rule, when there is a general designation of the property intended to be conveyed, parol evidence is competent to show what the proper description covers. For example: One person conveys to another his home farm. To identify the land, resort may be had to extrinsic evidence, to show what was meant by the home farm. Parol evidence has always been admitted to give effect to a written instrument, by applying it to its subject matter. Dorr v. School District No. 26, 40 Ark. 237. In the present case, however, the written instrument does not contain any description of the land intended to be conveyed. The location of the land would have to be wholly ascertained by parol evidence. The written contract furnishes no data whatever, and there is nothing in it to be aided by the introduction of extrinsic evidence. In other words, before a court of equity is justified in requiring the specific performance of a contract to convey land, the property must be accurately described; the contract must disclose a description which is in itself definite and certain, or one which is capable of being made certain by other proof, the contract itself furnishing the key by which the property may be identified. Fordyce Lumber Co. v. Wallace, 85 Ark. 1.

It has been held by this court that delivery of possession of land to the vendee under a parol contract of purchase takes the case out of the operation of the statute of frauds; and that possession alone is sufficient part performance of an oral contract for the sale of land to sustain a decree for a specific performance. But possession alone, in order to be sufficient, must be taken pursuant to the contract. Where the alleged purchaser is already in possession as tenant, and merely continues in possession after making the contract, that alone is not sufficient to take the case out of the operation of the statute. Phillips v. Jones, 79 Ark. 100, and Moore v. Gordon, 44 Ark. 334. In the instant case Tucker was the tenant of Ashcraft and merely continued in possession of the land after making the oral contract for the purchase of it. Under the authorities just cited, this was not sufficient part performance to warrant specific performance.

It is also contended that Tucker made valuable improvements on the land which constituted such part performance as took the case out of the statute of frauds. According to the testimony introduced by the plaintiff he cleared between two and three acres of the land and dug some ditches and the improvements thus made by him were worth forty or fifty dollars.

According to the testimony introduced by the defendant, the plaintiff did not clear any land and did not dig any ditches. Bushes had begun to grow up on the land on account of lack of proper cultivation and he only cut these off in order to make the land easier to cultivate. He chopped off two or three acres of the land in this way, but it was done in different portions of the field. He only cleared out the ditches as he had been accustomed to do every year during the period of his tenancy. Even according to the testimony of the plaintiff, the improve-meats made by him were not of that valuable and substantial character that would render it inequitable to refuse him the relief prayed for in his complaint. Young v. Crawford, 82 Ark. 33.

It follows that the decree will be reversed and the cause will be remanded with directions to the chancellor to dismiss the complaint of the plaintiff for want of equity.