¶1dissenting.
¶2The record shows without contradiction that: In the fall of 1978, at the suggestion of some friends who had bought some land from defendants, plaintiff asked defendants to let him visit their property for the purpose of offering to buy some of it. After walking over all of defendants’ property with them and visiting them seven or eight more times, plaintiff got defendants to agree to sell him twenty-five acres for $1,750 an acre, payable in monthly installments with interest. Both parties understood that plaintiff was buying thé “southernmost twenty-five acres” of defendants’ larger tract. The agreement stating the terms of the purchase and describing the land bought was composed by plaintiff and written in his hand. After making the payments required by the agreement and using the described land in various ways as he saw fit for more than eight years, plaintiff notified defendants he was of the opinion the contract was void and demanded the return of his money, and when defendants refused to comply filed this action for the return of the money. Defendants have stood ready at all times to deed the land purchased to plaintiff upon receiving the balance of the purchase price, which has not been tendered. In regard to the northern boundary of the purchased tract, the only uncertainty of which plaintiff complains, the record does not indicate that there has been a dispute between the parties with respect to it, and defendants have stipulated that plaintiff can establish that line as he sees fit consistent with the other terms of the agreement.
¶3In my opinion these circumstances required the court to dismiss plaintiff’s action for several reasons. First, plaintiff, having created any uncertainty that exists and having adhered to the contract for eight years, is in no position either legally or equitably to call on the law to extricate him from his obligation and require defendants to return what he has paid on it. Second, the statute of frauds is a defensive, rather than an offensive, vehicle. Third, *567the trial judge ruled correctly, I believe, that the phrase, “Thence straight to road that goes by Plainfield Church” was intended and understood by the parties to mean taking the shortest distance to get to the road in arriving at the southern twenty-five acres of defendants’ property. Fourth, even if the phrase is regarded as ambiguous, it is a latent ambiguity which requires no clarification by evidence in view of defendants’ stipulation that it can mean any twenty-five acres plaintiff wants consistent with the other contract terms.