Queen City Hoop Co. v. Barnett , 127 Miss. 66 ( 1921 )

Anderson, J.,

delivered tbe opinion of tbe court.

(After stating the facts as above). Standing timber being a part of the real estate is within the statute of frauds (section 4775, Code of 1906; section 3119, Hemingway’s Code), as held by this court in Harrell v. Miller, 35 Miss. 700, 72 Am. Dec. 154; McKenzie v. Shows, 70 Miss. 389, 12 So. 336, 35 Am. St. Rep. 654; Nelson v. Lawson, 71 Miss. 819, 15 So. 798; Walton v. Lowrey, 74 Miss. 484, 21 So. 243; and Butterfield Lumber Co. v. Guy, 92 Miss. 361, 46 So. 78, 15 L. R. A. (N. S.) 1123, 131 Am. St. Rep. 540.

It was held in Bowers v. Andrews, 52 Miss. 596, that every conveyance of land (and tbe same is true, of course, of a contract to convey) must define the identity and fix tbe locality of the land, and that this might be done in two modes. First, by a complete description in tbe writing itself pointing out directly tbe subject-matter; or, second, by reference to something aliunde the writing pointing with certainty to tbe property intended to be conveyed; that if reference is made to anything outside of the writing-in aid of tbe description of tbe property, such reference must not be uncertain and doubtful. And in Holmes v. Evans, 48 Miss. 247, 12 Am. Rep. 373, tbe court said that, in that class of cases where parol evidence was allowed to show the locality of the land in question, the writing itself must refer to something extrinsic by which the land could be identified by such evidence with certainty. And it was held in McGuire v. Stevens, 42 Miss. 724, 2 Am. Rep. 649, and Fisher v. Kuhn, 54 Miss. 480, that direct evidence of intention as contradistinguished from evidence to show that intent expressed in the writing is inadmissible.

It will be noted in the correspondence, which is relied on as constituting the written contract complying with the statute of frauds, that the timber in question is described in varying terms. In appellant’s letter of March 16, 1920, it is referred to as, “this timber tract of yours,” and in ap-pellees’ letter as “our elm and hackberry timber.” In the letter of appellant of April 8, 1920, is referred to as “the timber you own at Lorenzen,” and in appellant’s letter of May 17,1920, it is described as “the elm stumpage we made arrangements to purchase from you located at Lorenzen, Mississippi;” and in appellant’s letter of May 19, 1920, it is described as “the timber we bought from you at Loren-zen.” And in the letter of appellees to appellant undated, but the last of the correspondence, referred to the timber in question in this language:

“In regard to the elm proposition we were figuring on at Lorenzen, Mississippi, we managed to dispose of our whole tract, shrubs, including all elm and other timber.”

Applying the principles declared by this court in the cases above referred to, the court has held the following descriptions of land void in the cases named:

“Received of Micajah Bennett one hundred dollars, on account of an interest that I have let said Bennett have in a section of land located in range 8, east, toAvnship 17, and section 17,” in Allen v. Bennett, 8 Smedes & M. 672.

“Received . . . one hundred dollars as part payment on a piece of property on the corner of Main and Pearl streets, city of Natchez, county of Adams,'state of Mississippi,” in Holmes v. Evans, supra.

. “Received of Mr. Patrick McGuire two thousand dollars it being in part payment for a house and lot sold him by my brother, C. M. Stevens, Jackson, Miss., October 8, 1863,” in McGuire v. Stevens, supra.

“Lot and residence at Madison Station, for the taxes assessed to tbe reputed owner thereof, Thomas McMahon, for the year 1871,” in Bowers v. Andrews, supra.

“The lot of ground formerly occupied by W.,” in Fisher v. Kuhn, supra.

“My land, the entire tract, seven hundred and twenty-eight acres,” in Barnett v. Nichols, 56 Miss. 622.

“All our right, title, claim and interest in a tract of land belonging to” a designated person, in Bunckley v. Jones, 79 Miss. 1, 219 So. 1000.

“In consideration of fifty dollars I hereby give to R. T. Scherck a fifteen-day option on twenty-two thousand acres of timber land in Franklin and Jefferson counties, Mississippi, at twelve dollars and fifty cents per acre,” in Scherck v. Moyse, 94 Miss. 259, 48 So. 513.

“Received from Monroe Nickerson the sum of nine dollars to apply on purchase of land on the south side of the town of Darling, to be measured iater and paid for at the rate of thirty dollars per acre,” in Nickerson v. Fithian Land Co., 118 Miss. 722, 80 So. 1.

It will be observed that nearly all of the descriptions involved in the above cases are more definite and certain than the one in question here. There is nothing whatever in the correspondence indicating the quantity of timber the appellant proposed to buy from the appellees, nor the number of acres of land on which it stood, nor where the land was situated, except it is referred to as being near Lorenzen; nor the character of the standing timber, except it is referred to in one letter as elm and hackberry timber and .in another as elm stumpage. Therefore the correspondence relied on as meeting the requirements of the statute of fraud neither describes with any degree of certainty the subject-matter of the contract, nor does -it refer to anything outside of the contract which points with any degree of certainty to the timber intended to be sold.

Affirmed.