# FILED
May 13, 1997 Cecil Crowson, Jr . App ellate C ou rt Clerk IN THE COU RT OF A PPEA LS OF TENN ESSEE EASTERN SECTION A T KNOXVILLE

JIMMY L. CRUM, ) GREENE CHANCERY ) Plaintiff/Appellant ) NO. 03A01-9610- CH-00320 ) v. ) HON. JACK R. MUSICK , ) CHANCELLOR VESTAL C. LAWING and wife, ) MATTIE LAWING, ) ) Defendants/Appellees ) AFFIRMED

E. Grant Cr um, Greenevi lle, for Appell ant Douglas L. Payne, Greenev ille, for Appel lees

O P I N I O N

INMAN, Se nior Jud ge The issue in this case is whether two (2) writings afford intrinsic proof of their relation to t he sa me tr

ansa cti on th us ob vi atin g th e defe nse of the Statute of Frauds. The Chan cello r sus tained the sp ecial ly pl eaded de fense, a nd weaffirm. In early 1995the defendants orall y agreed to sell to t he plain tiff 21.5 acres in Greene County , Tennessee, for $60,000.0 0. The plaintiff prepared a document whi ch he signed, as Buyer, and forwarded it by Federal Express to the defendants. We reproduce this document: On this day of May 5, 1995, I , Jimmy L. Cr um, am making a $250.00 deposit on the 20 acre lo t owned by Mattie Law ing and on the 1 .5 acre lot owned by Vestel Lawing. This l and is loc ated joining Pinto and Holl ey Creek Roads. s/Mattie La wiing (Wife) (Nota ry) FL L520-542-27- 621 Ex 4-1- 97 s/Vestel La wing s/Ji mmy L. Crum (Husband) (Buyer) FL L520-863-26- 104 Ex 3-17- 20002 STATE OF FLORIDA COUNTY OF

VOLUSIA The foregoing instrument was acknowledged befo re me on this 5t h da y of May, 1995 by Mattie a nd Vest el Lawing, who is p erso nall y known to me or who has pr

oduced Fla. Drivers Lic. as identification and who did (did not) take an oath. s/Carol Rawlins Carol Raw lins OFFICIAL NO TARY SEAL CAROL RAW LINS NOTARY PUBLIC STATE OF FLORIDA COMMISSION NO. CC207098 MY COMM ISSION EXP. JULY 26, 199 6 The plaintiff enclosed a check for $250.00, which the defendants endorsed and cashed. On the same day they ex ecuted the d ocument which was returned to the plaintiff. The check

bore the notatio n "down pay t. on land." About three week

s later the defendants decided not to honor their oral agreement and sent a check for $250.00 to the plaintiff which he ref used. This action for specific performance soon followed. Our review is de novo

on the record, accompanied by a presumption that the findin gs of fact of the trial c ourt are cor rect unless the evidence otherwise preponderates. R ULE 13(d), T ENN . R. A PP . P. There is no presumption of correctn ess with regard to the trial court's deter mination of questi ons of law. NCNB v. T hrailkil l, 856 S.W .2d 250, 153 (Tenn . App. 1993). The Statute ofFrauds, Tenn. Code Ann . sect. 29-2-101, was first enacted in this State in 1801. As

pertinent here, it remains pristine, and provides "No action shall be brought . . . upon any c ontract for t he sale of lands .

. . unle ss the prom ise or agr eement upon whic h such action s hall be broughtor some memorandum or note thereof, shall be in writi ng an d signed by

the party to be charged therewith . . . " If the contr

act for t he sa le o f lan d is oral it is unenforceable unless the re is a written memorand um of it signed by the Sell er. Patterson v. D avis, 192 S.W.2d 227 (1945). Whether the memorandum is sufficient to satisfy the S tatute is a que stion of law, Massey v. H

ardcastle, 753 S.W.2d 127 (Ct. App. 1988), the resolution of which is dependent on the pecul iar factual sc enario. For instance, in Massey, which i nvolved the sale ofan automobile deal ership, the
memor anda failed to describe the real estate occupie d by the dealership. The Court1 Specific performancewas order ed, howev er, on the basi s of equitable estoppel. 3 held that the documents s imply failed to set outan agreement for the sale of a partic ular tract of land and were unenforceable. In Baliles v. Cities Se rvi ce Company, 578 S.W.2d 621 (Tenn. 1979), the memorandum alleged to satisfy t he Statute prov ided: "Cities ServiceCompany has ag reed to sell to you Lots 99and 100 i n Cherokee Hills for

residential purposes. As soon as residences are well under construc

tion deeds to thos e lots wi ll be delivered to you." The Supreme Court held that this de scription fail ed to descr ibe the land w ith reasonable certainty and did not sat isfy the Statute of Fraud s. 1 In C ampbell Farmer s Co-Op v. Moore, 303 S.W.2d 735 (1957), the memorandum alleged to s atisfy the Stat ute of Frauds prov ided: This is to certify that

I am re ceivin g this $100 .00 c heck as a d own paymenton land begin ning at the culver

t on 736 highw ay 63 runni ng wit h the middle of the stream a nd then parallel with driveway on Mrs . John Y. Moore's prop erty t o the Highwa y fron ting o n the Highwa y 6 3 to inclu de one acre of land. Bal ance of 2900.00 to be paid upon completion of this transaction. Jan 17, 1956. s / Mrs. J ohn Y. Moore "Ollie" This descriptio n was held to be insufficient t o satisfy the Statu te of Frauds because it did not reference the Sta te, County or Civil Distric t, and did not

identify Hi ghway

63, nor the culvert

or stream. I n Denison-Ghalson Dry G oods Co. v. H ill, 135 Tenn. 60, 185 S

. W. 723 (Tenn. 1916), t he descripti on was held to be inadequatebecause there w as no indication of theresidences o f the parti es. In Wood v . Zeigler , 99 Tenn. 515, 42 S

. W. 447 (Tenn. 1897), thedescriptio n was held to be inadequate because the State and County were not identifie d. In Gorbi cs v. Close, 722 S.W.2d 672 (Tenn. App. 1986), a descriptio n, "a one acre trac t of land on the nort hwest cor ner of my land," was held to be inadeq uate. The docu ment

rel ied on by

the p lai ntiff is characte rized by the defendants as merely being a receipt. On the face of it, we are constrai ned to agree, e specially when the accompanying check is c onsidered. While the cons ideration or the manner of its paymentis not necessarily required to be recited, Cobble v. Langfor d, 230 S.W.2d 194 (Tenn. 1950), the memorandum mus t cont ain the essential terms of th e contract4

expressed with suc h certainty tha t t hey may be understood, from the memor andum its elf, or some o ther writ ing to w hich it refers or wit h which i t is connected without resorting to parol evi dence. Lambert v. Home Fede ral 481 S.W .2d 771 (Tenn. 197 2). In the case at hand, the document can har d ly be characterized as a memorandum of a sale of real es tate . The pa rty to be ch arged agre es to no thing. W hile no particula r verbi age is req uired, the fact of a sale, and i ts essential terms, and
a descript ion of the land must ap pear with reasonable cer tainty in the writ ing reli ed upon. See, Case v. Brier Hill Collieries, 145 Tenn

. 1 , 2 3 5 S

. W. 57 (1921). W e are mindful that the Statute of F rauds should not be applied in s uch manner as to foster a fraud it was designed to pr event, see, GRW Ent. Inc. v. Dav is, 797 S.W .2d 606 (Ct. App. 1990), but nei ther should we fail to accor d it the req uisite enforcement. The Judgment is affir med at the costs of theappellant.

__________________________________ W illiam H. I nman, Senior Ju dge CONCUR:

_______________________________ Housto n M. Godd ard, Pre siding Jud ge

_______________________________ Charles D. Susano , Jr., Jud ge