#### HENRY CAPPS *against*WILLIAM D. HOLT.

Receipts for money paid opon a verbal contract, and which are relied on as evidence of the contract, form no exception to the rule that a writing, containing a patent ambiguity, cannot be helped by a parol evidence.

Where the description of the land, in a memorandum of contract, is vague and indefinite, Equity will not decree a specific performance.

Where a bill, for a specific performance, contains a prayer for general relief, and the answer admits the payment of a part of the purchase-money, and contains an offer to settle; it was *Held,*that the Court, although it cannot decree a specific performance for want of a sufficient writing within the statute of frauds, will, nevertheless, decree an account and repayment.

Cause removed from the Court of Equity of Johnston county.

The bill alleges, that some time in the year 1852, the defendant contracted with the plaintiff to convey to him a small tract of land, in the county of Johnston, containing one hundred and fifty acres, for in consideration of the sum of $450,00; that no memorandum of the contract was made at'the time ; that by the terms of this agreement, the plaintiff was to pay the purchase-money in such instalments, and at such times as should be most convenient; that defendant was to retain the *154title until all the money was paid ; that in pursuance oi‘ this agreement, the plaintiff, on the 21st of August, 1852, made the first payment, and took from the defendant, the following receipt:

“Received, this 21st of August, 1852, of Henry Capps one hundred dollars, in part payment of a greater sum due to me, on a bargain, made by us, for a tract of land, lying on the north side of' the Watery Branch, in the county of Johnston, and State of North Carolina, containing one hundred and fifty acres. It is also stipulated between us, that so soon as the balance of the money is paid me, I shall then be bound to make him a lawful and just deed for the same.” (Signed,) William D. Holt.

The plaintiff relies upon this, as being a sufficient memorandum of contract, within the statute of frauds.

The bill further alleges, that the plaintiff made several other payments, at different times, and that he several times applied to the defendant, offering to make the final payment, and demanding a conveyance ; but the defendant refused to comply with his agreement.

The defendant, in his answer, admits the payment of a part of the purchase-money, but denies the sufficiency of the receipt of the 21st of August, as an evidence of the contract, within the requirements of the -statute of frauds.

The answer alleges further, that by the terms of the verbal contract, the purchase-money was to be paid within a time certain, and the plaintiff having failed so to pay, defendant, several times, offered to come to a fair settlement with him by the intervention of any two disinterested persons; with the privilege of calling in an umpire; but plaintiff' refused.

*M. O.*Lewis, for the plaintiff.

Strong, for the defendant.

MáNly, J.

A specific execution of the alleged contract cannot be decreed. The receipt of the 21st of August, 1852, .is not sufficient as a note or memorandum in writing of the *155contract to fulfill the requirement of tbe statute, (Revised Code, ch. 50, sec. 11).

, The land is described to be “ a tract of one hundred and fifty acres, lying on Watery branch, in Johnston county.”

The position thus given, is not definite enough, and no decree for conveyance could be based upon it. From the frame of the receipt, it is not clear that it contains the whole, or was *intended*as a memorandum of the contract, and on that account, might not meet the demands of the statute. But whether it were so intended or not, is immaterial to our present enquiry. The writing, of itself, clearly is too vague and uncertain in the description of the land, bargained for, to warrant us in declaring where it is, by what termini included;; and decreeing a conveyance of it.

It has been settled, specially in reference to contracts of this sort, that they do not form exceptions to the general rule, that written contracts cannot be varied, added to, or subtracted from, by parol evidence. The rule is of universal application, that apparent ambiguity or uncertainty in contracts, cannot be helped by parol; but if the instrument be in itself sufficient, and the ambiguity arise from *proof,*such ambiguity may be explained by proof.. This is, indeed, the distinction between patent and latent ambiguity ; the one is apparent upon the reading of the paper, as in our case; the other springs from evidence *dehors;*and parol evidence is inadmissible in the one case and admissible in the other; *Allen*v. *Chambers,*4 Ire. Eq. 125; *Albea*v. *Griffin,*2 Dev. and Bat. Eq. 9; *Murdock*v. *Anderson,*4 Jones’ Eq. 77.

As we are not at liberty to resort to evidence outside of the paper to aid us, and the paper itself is insufficient, it follows, the plaintiff cannot have the relief of *specificperformances.*

We collect, however, from the answer, an offer on the part of defendant to account with plaintiff fairly, and, therefore, having cognizance of the subject-matter of controversy, we take a jurisdiction under the prayer for general relief, to adjust the rights of the parties as the defendant offers to do; and it is accordingly referred to the clerk of this Court, to *156state an account between them, charging defendant with all the payments that have been made to him on account of the land, and crediting him with a reasonable rent for the same during the time that complainant occupied it, and also for the turpentine boxes.

Per Cueiam, Decree accordingly.