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McGuire v. Stevens.

The main question for our determination is, whether this contract is such as can be specifically enforced under our statute to prevent frauds and perjuries, which provides that no action shall be brought upon any contract for the sale of lands, tenements or hereditaments, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him or her thereunto lawfully authorized. Rev. Code, 358,

art. 1.

It is insisted by the counsel for the appellees that the specific performance of the contract cannot be enforced, on account of the uncertainty of its subject-matter. We think this is the correct view of it; for every agreement which is required to be in writing by the statute of frauds must be certain in itself, or capable of being made so by reference to something else, whereby the terms can be ascertained with reasonable precision; otherwise it cannot be carried into effect. Abeel v. Radcliff, 13 Johns. 297; Fry on Specific Performance, 166.

Oral evidence is inadmissible for the purpose of supplying an omission in an instrument where written evidence is required by law, because to admit it would virtually be to give to oral the superior force of written evidence, and occasion that to pass by parol, which, by law, ought not to pass but by writing. And it is upon the same principle inadmissible to give any effect to a written instrument, which is void in law for uncertainty. 3 Starkie's Ev 1000; Woollam v. Hearn, 2 White & Tudor's Lead. Cas. in Eq. 589

It is well settled both in England and in this country, that under the statute of frauds there can be no specific execution of a contract in respect to land, unless the parties have described and identified the particular tract which is to pass from one to the other; or unless the contract furnishes the means of identifying with certainty the land to be conveyed. 1 Sugden on Vendors, 118; Blagden v. Bradbear, 12 Ves. 466; Reed's Heirs v. Hornback, 4 J. J. Marsh, 377, Allen v. Bennett, 8 S. & M. 681.

In the case of Wilkinson v. Davis's Administrator, the court says "That every contract or deed for the conveyance of land must define its identity and fix its locality, or there must be such a description of the land as, by the aid of parol evidence, will readily point to its locality and boundaries. But if the contract is void by reason of the uncertainty in the description of the subject-matter, parol evi

Summers and Brannin v. Roos & Co.

the deed, this fact of itself is per se fraudulent. It may be a circumstance from which a jury might infer fraud, and it may be prima facie fraudulent, or it may have been innocently or carelessly done on the part of both contracting parties, without an intention to defraud any creditor; and the question, whether there was a fraudulent intent in the creation of the deed was a question for a jury alone (where the deed was not fraudulent upon its face), and the court could not determine it. Keeping in view the principle, that if there was no fraud in the creation of the deed, if the grantor Baggett had paid the proceeds of the goods sold by him, embraced in the deed in trust, to the extinguishment of his indebtedness to Summers & Brannin, were they not legitimately applied? If they were not applied to the payment of Baggett's debts to Summers & Brannin, they were the only parties defrauded. Certainly, if Baggett had sold all the goods embraced in the deed, rnd applied the proceeds to the extinguishment of his indebtedness to Summers & Brannin, defendants in error could not complain, and they could not set up this fact to show a fraudulent intent to defraud them on the part of Baggett, or the cestuis que trust in the deed. In the case in 16 Ohio, above referred to, the court says: "That the mortgagee should permit the mortgagor to transact business for his own. benefit, and not proceed to collect the mortgaged debt, would not be evidence of fraud which would authorize the mortgagee to be defeated, upon the ground that it hindered or delayed creditors; because the mortgage may have been honestly executed, and simple generosity, or good nature, or carelessness in delaying the collection. of a debt, could not be regarded as a fraud which would defeat an honest security."

In the case at bar, there was no delay on the part of the cesturs que trust to have their deed enforced; they proceeded to have it executed by the consent of Baggett before the maturity of the $40,000 note, it having been shown that Baggett ceased to ship any cotton to Summers & Brannin after the 1st of February, A. D 1867. Still, Summers & Brannin, carrying out their contingent obligation to pay the balances to be paid Gartman et al. in thei contract, in the failure of Baggett to pay out of his own funds transmitted $3,000 for that purpose to Baggett, after Baggett ceased to ship cotton to them. Shortly after this time the cestui que trust opened negotiations with Baggett, to get his consent for the sale of the property embraced in the deed, previous to the maturity of the

Summers and rannin v. Roos & Co.

$10,000 note. This consent was not procured until the 16th of March, 1867, when Baggett made and executed, in the presence of witnesses, a transfer of all the goods in his storehouse to J. J. B. Hilliard, the trustee, and with the transfer delivered possession of the goods in the presence of witnesses. Delay cannot be urged as a ground of fraud, in connection with the permission of Summers & Brannin to Baggett to sell the goods, as was urged in the Ohio

case.

As we have before stated, the question arising out of the circumstances under which the deed in question was executed is one of fraud or no fraud against the defendants in error, and a question of fact for the jury, and not for the court. This court, in the case of Gilliam v. Moore, 10 S. & M. 130, has held that it is erroneous for the court to assume that fraud in fact exists, and this error will not be cured because the record seems to make out a case of fraud; the jury have a right to pass upon the question, and it is neither for the court below nor the high court of errors and appeals to preclude them from the inquiry. Id. 130. It will be observed that Hilliard, the trustee, had been in possession of the goods, etc., four days before they were attached by defendants in error as the property of Baggett. On this state of facts, if it were true, that deed contained a power of sale by the grantor, and was therefore void as to creditors who might obtain a lien upon the goods while in the possession of Baggett, and before the trustee took possession, yet Roos & Co., who only levied their attachment four days after the trustee took possession, and at that time being creditors at large, without a lien of any kind, cannot maintain their right under their attachment levied after Hilliard, the trustee, had obtained possession, under the transfer executed by Baggett on the 16th day of March, 1867. The identical question was decided in the case of Foster v. Saco Manufacturing Company, 12 Pfck. 451. In that case the deed in trust stipulated that the grantor should remain in possession of all the property, and sell and dispose of all the personal property, according to the usual course of their business, unless the trustee should be of the opinion that the safety of creditors required them to take immediate possession. Chief Justice SHAW, delivering the opinion of the court, said that "the first obvious remark upon the facts of the case is, that the assignmert, as to the personal property, was inoperative, and void against any creditor who should have attached before the trustee took posses

McGuire v. Stevens.

dence is not admissible to supply the omission." Freem. Ch. 58. A receipt for a sum of money, expressing that it was the cash part of the purchase of a lot of land, without specifying the terms of the contract, is not such a memorandum as will take the case out of the statute against frauds and perjuries. Ellis v. Deadman's Heirs, 4 Bibb, 466; Allen v. Bennett, 8 S. & M. 681.

It seems to be well settled, that direct evidence of intention, as contradistinguished from evidence to show the intent expressed by the words or language of an instrument, is inadmissible. Extrinsic evidence is admissible only to construe and apply the terms of the writing. The rule in such cases confines the inquiry to the meaning of the words used; and hence all extrinsic evidence tending to prove, not what the party has expressed, but what he intended to express, is obviously calculated to throw no light on the real matter in dispute.

In the case at bar, there is nothing in the receipts to point out or locate the lot, nor is there any thing referred to therein to indentify it, or by which its location can be ascertained. They are too vague and uncertain to be the foundation of a decree. It has been held by the supreme court of the United States, that if the land granted be so inaccurately described as to render its indentity wholly uncertain, the grant is void. Boardman v. The Lessees of Reed, 6 Pet. 545; 1 Greenl. Ev. 350, § 301.

The agreement in this case is too indefinite and uncertain to authorize a degree for specific performance of it; and to let in parol testimony to supply the omission in the agreement would be to allow that to pass by parol which by law ought not to pass but by writing, and would open the door to all the mischiefs intended to be provided against by the statute.

This court has repeatedly decided, that a bill to enforce a parol contract for the sale of land cannot be maintained in this state, and that part performance will not take a parol sale of lands out of the statute of frauds. The statute contains no exceptions in regard to such contracts, and it is not for us to create exceptions where none exist in the statute. Beaman v. Buck, 9 S. & M. 210; Box v. Stanford, 13 id. 93.

For these reasons we think the court below did not err in sus. tining the demurrer and dismissing the bill.

The decree will therefore be affirmed.

Summers and Brannin v. Roos & Co.

SUMMERS & BRANNIN et al. v. Roos & Co.

(42 Miss. 749.)

Trust deed-Future advances-Junior creditors.

R. & Co., having a debt against B., attached certain property then in possession of H. by virtue of a deed of trust executed to him by B. in favor of S. & B., and, as appeared on the face of the instrument, to secure the payment of a $40,000 note. It appeared from an agreement bearing the same date, that the trust deed was intended to secure future advances as well as pres ent liabilities; of which agreement the attaching creditor had no knowledge. The trustee gave a bond, and the right of property was tried. Held, that the deed of trust was valid, although it did not show upon its face that it was to secure future advances, and that the possession of the trustee was good against the claim of R. & Co., whose demand was contracted subsequent to the recording of the deed.

CREDITORS' attachment. The facts are stated in the opinion. The instructions referred to are as follows:

1. If the jury believe, from the evidence, that the deed of trust in question was made with a view to protect Baggett in any way from his creditors, it is void, and the claimant acquired no rights anda it, and they should find for the plaintiff in the attachment.

2. If the jury believe the deed was made for fraudulent purposes, it is void; and they should certify in their verdict that it was made for fraudulent purposes, and assess the value of the property replevied by the claimant.

3. A mortgage or deed of trust made to secure future advances must make that fact distinctly appear on the face of the deed, or it is void as between third parties who claim without actual notice of the intentions of the grantor and grantee in the deed of trust.

To these charges plaintiffs in error excepted.

Plaintiffs in error asked the following charges, which were refused, and an exception taken :

15. That the plaintiffs in execution are bound to make out their case, and to show, by testimony, that the certain property levied on is subject to the attachment; and if they should believe, from the evidence, that only a portion of the property is so subject, and that it is not shown by testimony what specific portion or articles are so subject, then they should find a verdict for the claimants.

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