#### D. Kirkpatrick, Appellee, v. A. W. Pettis and Maggie Pettis, Appellants.

Specific performance: sale of land: insufficiency of description. Specific performance of a contract to convey land will not be decreed, where the evidence fails to point out and designate the land to be conveyed with a certainty sufficient to guide a surveyor in locating its lines and -corners.

*Appeal from Johnson District*Court.— Horn O. A. ByiNG-toN, Judge.

Monday, June 12, 1905.

ActioN in equity for specific performance of an alleged contract to convey land. Decree for plaintiff, and defendants appeal.

*Reversed.*

*M. J. Wade*and *H. JE.*Porter, for appellants.

*Milton*Remley, for appellee.

Weaves, J.

The petition seeks to enforce specific performance of an alleged oral contract to convey a tract of land described as follows: “ Three acres of land in the southwest corner of the south half of the northeast quarter of Sec. 10; Township 77, north of Bange 5, west of the 5th P. M. to extend north on Devoe St. in the town of Lone Tree, eight rods from the right of way of the Chicago, Bock Island and Pacific Bailroad, and not to exceed 9 rods, running eastwardly parallel with the right of way of the said railway far enough to make, within the description, three acres of land.” TJpon this contract it is further *612alleged that plaintiff paid to tbe defendant A. W. Pettis .tbe sum of $10, wbieb payment was evidenced by tbe written receipt of said defendant in' tbe following form: “ Lone Tree, Iowa, Sept. 4th, 1903. Received of T. M. Lee, agent for D. Kirkpatrick, $10.00, to apply on three acres of land, north of right R. road, 8 rods not to exceed nine rods north; east to take in three acres. A. W. -Pettis.” The answer of the defendants consists solely of general and specific denials of the .averments of the petition and a plea of the Statute of frauds. The testimony tends to show that there was some negotiation between one Lee, as agent of the plaintiff, and the defendant A. W. Pettis, for the sale by the latter to said plaintiff of a three-acre tract of land, but no witness undertakes to describe it more definitely than as “ a piece of ground,” *“*this land,” “ three acres of land on the north side of the right of way of the railroad track,” *“*three acres of land eight or nine rods wide on the west side to be land [laid ?] due east and to take in three acres, not the well, about four feet from the well.”

It is a well-established rule that specific performance will not be granted where there is uncertainty, ambiguity, or doubt respecting the subject-matter of the contract. 1 Story’s Equity Jurisprudence, section 767; *Colson v. Thompson,*2 Wheat. 336 (4 L. Ed. 253); *Brown v. Lord,*7 Ore. 302; *Olive v. Dougherty,*3 Greene, 371; *Blum v. Robertson,*24 Cal. 142; *Appeal of Cortelyou,*102 Pa. 576; *Minturn v. Baylis,*33 Cal. 133; *Mathews v. Jarrett,*20 W. Va. 415; *Blanchard v. R. R. Co.,*31 Mich. 59 (18 Am. Rep. 142); *Johnson v. Craig,*21 Ark. 533; *Hamilton v. Harvey,*121 Ill. 469 (13 N. E. Rep. 210, 2 Am. St. Rep. 118); *Jordan v. Fay,*40 Me. 130; *Murdock v. Anderson,*57 N. C. 77; *Lanz v. McLaughlin,*14 Minn. 72 (Gil. 55); *Preston v. Preston,*95 U. S. 200 (24 L. Ed. 494). It would be difficult indeed to concoct a description of land more uncertain, ambiguous, or doubtful than is here disclosed. The description given in the petition is not seriously objectionable in *613tbis respect, but tbe testimony nowhere point's out or designates tbis specific tract as tbe particular tract of land wbicb Pettis undertook to convey. Tbe answer puts in issue all tbe allegations of tbe petition, and tbe burden was on plaintiff to establish the essential facts by at least, a fair preponderance of tbe evidence. In tbis respect tbe record as contained in tbe abstracts before us indicates a failure of proof.

We may admit for tbe sake of tbe argument' that, notwithstanding tbe vague and uncertain language contained in tbe receipt and in tbe talk between tbe parties, it was competent for plaintiff to show by parol tbe exact location of the land wbicb they bad in mind. It is a recognized maxim of equity that a thing is certain wbicb is capable of being made certain, but tbe proof by wbicb it is rendered certain must be laid before tbe court for its guidance in framing tbe decree wbicb fixes tbe rights and equities of tbe parties. The absence of such proof in tbe instant case leaves tbe record entirely too vague to support tbe decree in tbe plaintiff’s favor. Lay aside the description contained in tbe petition, and every attempt to locate tbe land from tbe testimony offered must fail. Nowhere by any witness is any reference made to tbe section, township, or range in wbicb tbe land is to be found, or tbe street or streets by wbicb it is bounded. Such attempts at description as are in fact made are so hazy and indefinite as to afford no intelligible guide to a surveyor in discovering its location or establishing its lines or corners. That such an agreement cannot be specifically enforced is sufficiently established by tbe authorities heretofore cited. It is also a matter of much' doubt whether the alleged agreement as to tbe terms and conditions on wbicb tbe sale was to be made have been so clearly established as to sustain a demand for specific performance, but tbe conclusion already announced renders it unnecessary to pass upon tbis or other objections argued by counsel.

The decree of the district court is *reversed.*