#### Ezekiel F. Hyde *vs.*Elijah M. Cooper.

*Specific Performance*— Statute *of Frauds.*

*A*•written memorándum of an agreement for tire sale of land, which does not describe the land, but refers for its identity to a verbal agreement between the parties, either subsisting or afterwards to be made, does not satisfy the requirement of the Statute of Erauds, and cannot therefore be enforced on bill for specific performance*

BEFORE JOHNSON, OH., AT LAURENS, JUNE, 1866.

The decree of his Honor, the Chancellor, is as follows:

Johnson, Ch. About the first of June, 1864, the complainant and defendant entered into an agreement, by which the complainant was to convey to the defendant a small piece of land, with a dwelling-house and some other houses-upon it — which was very near the residence of the latter— and to pay to him the sum of $1,300; and the defendant was to convey to the complainant two separate pieces of land — one supposed to contain thirty-five, or forty acres. These pieces of land had not been separated from the main body of the defendant’s land.

■The complainant, in the bill, alleges that the two small pieces of land were, by the agreement, to be exchanged, and that he was to pay the $1,300 to the defendant for the larger piece.

The defendant, in his answer, denies that that was the agreement, and alleges that he was to receive the small piece of land and the $1,300 as the consideration for his two pieces of land ; and that the small piece of land of the complainant was the principal inducement with him in entering into the agreement, in order that he might have the control of the settlement upon it.

*251On the 3d day of June, 1861, the complainant paid the defendant $100, and took from him the following receipt, to wit:

“This is to certify that E. E. Hyde has this day paid to E. M. Cooper $100, in part payment of the purchase-money of a tract of land to be defined according to lines and corners previously agreed upon, being a part of the sum of $1,300, the price of said land; and I do hereby certify that I will give titles immediately.

(Signed) “E. M. Cooper.

*“Jume*3, 1861.”

Some time during the month of June of the same year, the parties procured Keuben Martin, a surveyor, to go upon the premises and run out the several parcels of land; which he did by corners which were agreed upon by the parties — by which it was ascertained that the larger tract to be conveyed by this defendant contained seventy-seven acres, and that the smaller one contained three and one-half acres, and that the tract to be conveyed by the complainant contained two and one-half acres.

The defendant, in his answer, admits signing the receipt, but states that, when the complainant wrote and read the same to him, that he *“*remarked to complainant that it was not full and complete, inasmuch as the defendant was alone bound therein to make titles, and that the quantity of land to be conveyed was left'entirely out;” to which complainant rejoined that “it was a memorandum, showing the amount of money mentioned therein had been paid upon the contract, and was not intended to embrace the whole contract; and that he (the complainant) would do right — would carry out the whole contract, and would convey to defendant the lot which he had contracted to convey,” and upon which statement the defendant signed the réceipt, and delivered it back to the complainant — and also, that the number of *252acres bad been increased by tbe surveyor running one line, at the request of tbe complainant, differently from that which had previously been agreed upon, witb tbe understanding that be would pay for tbe additional number of acres what they were reasonably worth.

Tbe defendant further stated, in bis answer, that soon after the survey, Mrs. Hyde, tbe wife of tbe complainant, informed him and her husband that she objected to tbe sale of tbe lot of land that was to be conveyed by tbe complainant, saying, *“*that it bad been tbe homestead of her father, or some of tbe family, and that she could not give her consent that it should be sold off.” The defendant then said to the complainant, that, unless that portion of tbe agreement was carried out, he was unwilling that any portion should be carried out; and understanding that tbe complainant bad no-titles to tbe land, it being tbe inheritance of bis wife, be announced to tbe complainant that tbe contract was at an end, and tendered back to him the $100 which he had paid, which was refused. These allegations of tbe answer are not supported by other evidence, and consequently can have no bearing on tbe decision of the case, except so far as they are responsive to tbe statements of tbe bill.

On tbe seventh day of July, 1864, tbe complainant sent by Mrs. Hunter, in a letter, (a copy of which was offered in evidence,) $1,200 in Confederate money, to tbe defendant, in payment of tbe balance due on tbe land trade, but made no offer to give titles for the two and one-half acres of land to him. Tbe money was refused by him.

Eeuben Martin, tbe surveyor, testified that the defendant told him, after tbe survey, that be supposed there would be thirty-five or forty acres in tbe large tract to be conveyed by him, and that be inferred, from a conversation witb Mr. Hyde, if he did not say so to him expressly, that he got so much more land than be expected, that be pro*253posed, as a matter of compromise, to pay Cooper $600 more than he agreed to pay. He also testified, that “ the understanding I had was, that the exchange of the two lots was the agreement,” without stating from whom he received his information.

The said lot of land, containing two and one-half qores, at the time the agreement was entered into, belonged to the estate of Mrs. Mary Hunter, the mother of Mrs. Hyde; but since that time, it had been set apart, by proceedings in partition, to Mrs. Hyde, subject to the following provisions in the will of Mrs. Hunter, to wit: “ The balance of Nancy A. Hyde’s share shall pass into the hands of M. M. Hunter— giving her power to use the same in any way that he may think best for her interest and comfort, always- consulting her.”

The bill was filed on the thirteenth day of October, 1864, and prays, amongst other things, that the defendant may be decreed "to execute”.to the complainant “titles for-said lands, according to the true intent and meaning of said agreement, and surrender possession of said lands” to the complainant.

The defendant, in his answer, submits that the contract, of which the complainant seeks the specific performance, is a verbal one — never reduced to writing, or any sufficient memorandum thereof — and that it is, therefore, void, under the Statute of Frauds, which is pleaded; and that the complainant had not performed, and was not in a condition to perform, his part of the contract, at the time of filing the bill, and that it should, therefore, be dismissed.

It is admitted by the bill and answer that there was but one agreement. And although the terms of the receipt might imply that there were two separate and distinct parts of the same, I am of the opinion, both from the direct and positive allegations of the answer in response to the bill, and from the fact that the small lot of two and one-half acres had valuable improvements on it, and from the fur*254ther fact that the larger lot of land of the defendant was worth from six to ten dollárs per acre in good money, before the commencement of the war, that the agreement was an entire one, without any independent facts.

In *Winfield*vs. Stewart, 1 Hill, Ch. Eep. 166, Judge O’Neall states that, “so the consideration to be paid, the time of payment, and a description of the property to be sold, appear from any written memorandum, signed by the party to be charged, sufficiently certain to enable the Court to decree a specific performance, it is all that is necessary.” The written memorandum must contain all the terms of the agreement in it, and resort cannot be had to parol evidence to help it out, or to extrinsic evidence. *Hatcher et al.*vs. *Hatcher et al.,*McM. Eq. 318. Are all the terms of the agreement to be found in the receipt of the 3d June ? Had the lines and corners been agreed upon before that time, or were they to be agreed upon before they were run out by a surveyor? Which of the two tracts is referred to in this receipt? Does it cover the whole agreement, or only a part of it ? Before the Court would be justified in decreeing specific performance, the agreement should be unambiguous and definitely ascertained, and nothing should be taken by conjecture.

The opinion of the Court is, that the complainant has not brought himself within the prescribed rules, and that the plea of the Statute of Frauds must prevail. I am also of the opinion that there was no such part performance of the contract as would take the case from under the provisions of the statute.

At the trial of the case, the complainant did not have a good marketable title to the little lot of land that was to be conveyed by him to the defendant, and I think the prayer of his bill must be refused on that account also.

It is ordered and decreed that the bill be dismissed with costs.

*255The complainant appealed, and now moved this Court to reverse the decree, on the following grounds:

1. Because the memorandum in writing was sufficiently comprehensive and definite in its terms to take the case out of the Statute of Frauds, and entitle the complainant to specific performance. And that the surveyor had no difficulty in locating the lands according to the corners previously agreed upon by the parties, and pointed out by them to him as those referred to in the memorandum.

2. Because the complainant complied, as far as defendant would permit him, with his part of the contract, and was always ready and willing to do so fully; and that what he did was sufficient to entitle him to a decree for specific performance.

8. Because the trustee of complainant’s wife, Dr. M. M. Hunter, was before the Court, and swore that he approved the contract made by complainant, to exchange the small piece of land with defendant, and would make titles to the same, so that there was no deficiency in the title, and defendant was bound to take it.

4. Because, from the testimony of the whole case, the complainant was entitled to a decree for specific performance.

*Sullivan,*for the motion.

*Young, Simpson,*contra.

The opinion of the Court was delivered by

"Waedlaw, A. J.

The bill states the defendant’s agreement to convey to the complainant a tract defined by lines and corners, and by survey found to contain seventy-seven acres, in consideration of $1,800, and speaks of this as part *256of an. entire agreement, whereby there was also to be exchange between the parties of two smaller tracts. It exhibits' a memorandum signed by the defendant, by which he acknowledged the receipt from the complainant of $100, *“*in part payment of the purchase-money of a tract of land to be defined according to lines and corners previously agreed upon, being part of the sum of $1,300, the price of said land, and I do hereby certify that I will give titles immediately.” And further, the bill states that, soon after the receipt was signed, a surveyor did, in the presence of the parties, survey the larger tract according to lines and corners shown by the parties, in conformity with their previous agreement, and made a plat which shows that the tract contains seventy-seven acres, and further, that the complainant has tendered to the defendant $1,200, the balance of the purchase-money, and is ready to make to the defendant titles for the small tract which complainant was to give in exchange, and to execute the whole agreement in full.

The answer avers that the defendant’s agreement was to convey two tracts in consideration of $1,300, and also of a third tract which was important to the defendant, and the principal object in his view; does not admit that, before the survey, the defendant had definitely agreed upon any lines for the larger tract, but sets forth that, for their mutual accommodation, the parties had agreed concerning three parcels, which were to be taken from the tracts upon which they respectively resided, and as to the larger parcel, had spoken of thirty-five or forty acres, to be contained in lines which were vaguely pointed out as likely to run in certain directions, and that, when the surveyor came, he was permitted to run certain lines experimentally for ascertaining what they would contain, but the quantity and delineations of his plat never were assented to by the defendant, who claims the benefit of the Statute of Frauds.

It is manifest that here is such discrepancy of statement *257that no mere verbal agreement as to the land to be .conveyed can be enforced upon the ground of defendant’s acknowledgment in his answer, and the case depends upon the written memorandum.

The memorandum contains no description but by reference to a verbal agreement, and however precise that may have been, however exactly the survey corresponded with it, the question at last is, how the Statute of Frauds has been satisfied. “A tract of land to be defined,” shows something essential subsequently to be done. *u*According to lines and corners previously agreed upon,” seems to imply particulars which the parties shall agree upon previously to the *defining.*But even if the meaning is, a tract to be represented by a plat, which shall be inade according to a scheme upon which the parties have agreed, here is a contract partly in writing, and partly in parol, and the parol relates to the very important particular, the description of the thing to be conveyed. In a contract in writing, upon a matter to which the Statute of Frauds does not extend, reference to a verbal agreement might avail, as in such case a new contract, superseding the written one, might be shown by parol. But where the Statute of Frauds requires writing, even another instrument of writing referred to in the memorandum must be, by the memorandum, so described, that, by the description, it may be identified, and thus become part of the contract; and the instrument referred to must be in existence at the time when the memorandum was signed, otherwise the connection can of coúrse be established only by parol. Phil. Ev. pt. 2, ch.. 8, § 2; *Clayton*vs. *Nugent,*13 M. & W. 200. Much less can the requisitions of the statute be complied with by a writing, which refers to a verbal agreement, whether that agreement is subsisting or afterwards to be made. The memorandum here mentions a tract of land, but a tract altogether uncertain. What tract ? One that shall be defined — say surveyed *258and represented by a plat; that plat is to be made according to tbe defendant’s agreement, but there had been no agreement except by words, and the case is no better than if the defendant had promised, by the memorandum, to convey such quantity as afterwards it should please him to convey.

The order made by the Chancellor for dismissal of the bill with costs is affirmed.

Motion dismissed.

Dunkin, Oh. J., and Tnglis, A. J., concurred.

*Appeal dismissed.*