Matthews v. LaPrade

¶1also delivered a concurring opinion.

¶2In Hurley v. Brown (1868), 98 Mass. 545, 96 Am. Dec. 617, the description of the property was, “a house and lot of land situated on Amity street, Lynn, Mass.” This memorandum was held to be sufficient under the statute of frauds. Foster, J., delivering the opinion of the court, said: “No more particular description is necessary under the statute of frauds, in a contract for the sale of real estate, than in one relating to personal property. In each, to constitute a bargain and sale, or a contract which will be specifically enforced in equity, the subject matter thereof must be identified.

¶3“In a deed, the words of description are, of course, intended to relate to an estate owned by the grantor. And, in our opinion, this is also the presumption in construing ¿ contract for a future conveyance. If the party who enters into the agreement in fact owns a parcel answering to the description, and only one such, that must be regarded as the one to which the description refers.

¶4“With the aid of this presumption, the words ‘a house and lot’ on a street where the'party who uses the language owns only one estate, are as definite and precise as the words ‘my house and lot’ would be; a description the suf*419ficiency of which has been placed beyond all doubt by very numerous authorities. Bird v. Richardson, 8 Pick. 252. Phelps v. Sheldon, 13 Pick. 50. Atwood v. Cobb, 16 Pick. 227. In both cases the same extrinsic evidence must be resorted to, by. the aid of which all uncertainty is removed. Where the words used are ‘my estate’ in a particular locality, oral evidence is necessary to show what estate the vendor did own. A latent ambiguity always exists where the party owns two parcels, to each of which the description used is equally applicable.

¶5“In the present case the writing does not show that there is more than one house and lot on Amity street. This fact was disclosed by the oral evidence at the trial; and the familar rule would seem to apply, that parol evidence is admissible to explain and remove a latent ambiguity. If there had been only one house and lot on the street, there would have been no indefiniteness in the description. The supposed uncertainty having been created by parol, evidence of the same character may be resorted to for its removal. But without relying much upon this consideration, we regard the fair construction of the words used to be, that they relate to a house and lot owned, at the time the memorandum was signed, by the parties who subscribed it. Thus interpreted, they are sufficiently certain, and the oral evidence is needed only to apply the description. This must be done by extrinsic evidence in every contract or conveyance, however minutely the boundaries of the estate may be set forth. The maxim, Id cerium est quod cerium reddi potest, is the established rule of construction in suits for specific performance. The contract in the present case seems to us fairly within its application.”

¶6In Meade v. Parker, 115 Mass. 413, 15 Am. Rep. 110, the memorandum was dated at Boston, and the description given of the property was, “a house and lot on Church street.” It was held, chiefly on the authority of Hurley v. Brown, supra,*420that it might be shown by parol that the house and lot referred to were in Somerville, and that the memorandum was sufficient under the statute of frauds. Hurley v. Brown, supra,was also quoted from with approval in Ballou v. Sherwood, 32 Neb. 666, 49 N. W. 790, 50 N. W. 1,131, and Bacon v. Leslie, 50 Kan. 494, 31 Pac. 1,066, 34 Am. St. Rep. 134, but has been repudiated in Draper v. Hoops, 135 Ill. App. 388.

¶7In Holley’s Ex’r v. Curry, 58 W. Va. 70, 51 S. E. 135, 112 Am. St. Rep. 944, it is said:

“It may be laid down generally that great liberality is allowed in the, matter of description. In description, that is certain which can be made certain. A deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. ' The office of description in a deed or other writing is not to identify the land, but to furnish means of identification.” See also Crotty v. Effler, 60 W. Va. 258, 54 S. E. 345, 9 Ann. Cas. 770; Lente v. Clarke, 22 Fla. 515, 1 So. 149; Burns v. Witten, 56 Ore. 568, 108 Pac. 129; Minge v. Green, 176 Ala. 343, 58 So. 381; Ranck v. Wickwire, 255 Mo. 42, 164 S. W. 460; Hodges v. Kowing, 58 Conn. 12, 18 Atl. 979, 7 L. R. A. 87; Bogard v. Barham, 52 Ore. 121, 96 Pac. 673, 132 Am. St. Rep. 676.

¶8[8-9] The object of the memorandum is to protect the “party to be charged thereby,” not third persons, and while parol evidence is not admissible to vary, alter or contradict what is in writing, it is admissible for the purpose of identifying the subject matter of the contract. “There is no mystery about the statute of frauds,” and the subject matter of the contract may, ■ as between the parties thereto, be identified by parol as well where it is land as where it is personal property. The general rule in the interpretation of written instruments is that it is permissible for the expositor to *421place himself as nearly as possible in the position of the maker of such instrument, and to this end parol evidence is admissible to show the facts and circumstances surrounding such maker at the time the instrument was executed.

¶9[10] The defect in both the original and amended notice is that they do not allege that the defendant owned one and only one tract of land in Prince Edward county, containing 466 acres, more or less. If this had been alleged and proved, and it had been shown that the parties dealt with reference to that tract of land it would have been a sufficient compliance with the statute of frauds.

¶10We are of opinion that it was permissible for the plaintiff to allege, and to prove by parol, that the defendant owned a tract of land answering the description given in the written memorandum, and only one such tract, and that it was the tract upon which the defendant gave the option in the declaration mentioned.

¶11[11] Now as to the measure of damages. Whatever may be the rule elsewhere, the rule in this State is that executory and executed contracts stand on the same footing in this respect, and that the measure of damages is the value of the land at the date of sale, and not the value at time of the breach, and if a price has been agreed on that is the best evidence of its value, and is to be accepted as such. If the purchaser has paid anything, he is entitled to recover the money paid with interest, and also any sums properly expended by him for the examination of the title, etc.

¶12In Stuart v. Pennis, 100 Va. 612, 42 S. E. 667, decided in 1902, a vendor of real estate was- sued in assumpsit for breach of contract to convey, and it was there said: “In Thompson v. Guthrie, 9 Leigh (36 Va.) 101, following Stout v. Jackson, 2 Rand. (23 Va.) 132; Threlkeld v. Fitzhugh, 2 Leigh (29 Va.) 451; Mills v. Bell, 3 Call. (7 Va.) 320, and the leading English case of Flureau v. Thornhill, 2 W. Blacks. 1,078, it is shown that the rule is as ap*422plicable to executory contracts as to those executed, and that the vendee is not entitled to more damages than the purchase money he has actually paid and interest thereon. ‘For this’, says the opinion, ‘he ought to be compensated, if the land falls in value; and no more than compensated, if it rises. Such a rule offers no temptation to the vendor to violate his contract, because if he has a good title the vendee can claim specific performance in a court of chancery, instead of bringing his action at law.’

¶13“It is true, as pointed out in the argument of the case at bar, the doctrine announced in Flureau v. Thornhill and Thompson v. Guthrie has not been uniformly followed in the Supreme Court of the United States and several of the State courts, but it has been recognized as a settled doctrine in a number of decisions by this court: viz., Wilson v. Spencer, 11 Leigh (38 Va.) 271; Newbrough v. Walker, 8 Gratt. (49 Va.) 16; Chick v. Green, 77 Va. 835; Sheffey v. Gardiner, 79 Va. 313; Abernathy v. Phillips, 82 Va. 769, 1 S. E. 113; Conrad v. Effinger, 87 Va. 59, and Roller v. Effinger, 88 Va. 641, 14 S. E. 337.”

¶14In Click v. Green, 77 Va. 835, the reason for the rule is stated as follows: “The reason why the increased value cannot be estimated in the damages incident to the breach of the covenant is that the covenant, which runs with the land, cannot be construed to extend to anything other than the land itself, which is the subject matter of the covenant. A different rule, however hardly this one may in some cases seem to operate to the prejudice of the warrantee, would be fraught with most disastrous consequences. In the absence of fraud, and none is pretended in this case, it would be a ruinous rule to say that a vendor making a sale in good faith — it may be of land of but little value, but which, from the discovery afterwards of rich mineral- deposits, or from other cause, should become suddenly of immense value — should be held by his vendee, on eviction, liable for *423such enhanced value as the measure of damages. Very-few persons would undertake to warrant the title of land conveyed, if such were the rule. But it is useless to discuss this question, for, since the case of Threlkeld v. Fitzhugh, 2 Leigh (29 Va.) 451, the definitely fixed rule, never since departed from in Virginia, has been that the purchaser, upon eviction, in a case like this, is only entitled to the purchase price paid, with interest from the date of eviction, and costs. This rule is safe and certain; it is too' well established, too plainly essential to the general good, to admit of doubt.”

¶15In 1 Minor’s Real Property, sec. 1132, p. 1231, it is said: “Because of the danger of imposing a grievous burden upon the grantor, in case he should unwittingly convey a defective title, the courts of England and of Virginia also have persistently declined to measure the damages, upon a breach of covenant of title, by the value of the land lost as at the time of eviction, but have held that the proper measure of recovery is the value of the land at the time of the warranty; that is, at the time of the conveyance; and the best standard of such value is in general the price agreed upon at the time of the sale or so much thereof as has been paid (with interest from the date of the eviction and the legal and taxable costs expended in the action in which eviction occurs). But nominal damages only will be recoverable if no actual loss has been sustained by reason of the breach of the covenant.”

¶16In the face of these authorities, we do not feel at liberty to change a rule so firmly established by the decisions of this court. It has become, in a sense, a rule of property. But the authorities cited concede that there are exceptions to the rule, and the plaintiff claims that he is within such exceptions. This claim, the defendant denies. This controversy was not developed in the trial court, because the proposed amendment of the plaintiff’s declaration was not *424specific enough in its allegations to put the matter in issue. A party who claims to come within an exception to a general rule of law must, in his pleadings, state such facts as clearly bring him within such exception.

¶17[13] Had counsel for the plaintiff offered to amend in the particulars hereinbefore pointed out, it would have been error to have refused permission to do so, but he failed to do this. The result is the judgment of the trial court must be affirmed, but without prejudice to the right of the plaintiff to institute a new action upon the same cause of action, if he shall be so advised.

¶18Affirmed.