Daily Development for Friday, July 20, 2007
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
There are three cases here with three different peeks at the issue of uncertain land grants. In the first one, we have no writing at all, but the court recognizes the possibility of a valid grant (although in the end rejecting it for other reasons). The second two involve uncertain descriptions.
STATUTE OF FRAUDS; PAROLE GIFT OF LAND: Missouri courts will uphold a parole gift of land as conferring equitable title where the grantee takes possession of the property and other evidence indicates an intent to make a gift, but possession shared with grantor may not be sufficient to meet the possession requirement absent a very clear case of the grantor’s intent. O’Dell v. Mefford, 211 S.W. 3d 136 (Mo. App. 2007)
Mefford resided with owner of land and Bryan in a mobile home permanently affixed to the land for about four years. During that time, an assignment of ownership of the mobile home from Bryan to Mefford was recorded, but there was no record of a deed, and in fact no claim that a deed was ever executed. Later, alleged grantee moved out of the mobile home. Four years later, Bryan died and left the property to his sister by will. Mefford moved back into the mobile home about a month after the death, and the sister moved to quiet title against her.
The court noted that the mobile home had become a fixture, and ownership of it could not pass without a transfer of title to the land. It acknowledged that Missouri will recognize the validity of a parole gift of land to create equitable title in the land if the gift is accompanied by a transfer of possession. Although the court acknowledged that shared possession with the grantor may be enough to satisfy the transfer of possession requirement, there must be other clear and convincing evidence that a gift was intended.
Here the trial court did not find sufficient evidence of a gift. The appeals court noted that the evidence showed that Bryant had not signed the assignment of ownership of the mobile home, and Mefford’s absence from the home for four years prior to Bryan’s death also militated in favor of a conclusion that not gift had been intended.
VENDOR/PURCHASER; LAND DESCRIPTIONS: Contract sufficiently describes the portion of vendor’s land to be sold so that it doesn’t violate the Statute of Frauds where it states that parties have agreed upon boundaries and later survey will provide exact description. Schuler v. Graf, 862 N.E.2d 709 (Ind. App. 2007).
Schuler and Graf entered into a land contract that described “two surveyed parcels [one being approximately 5 acres and the other 6]. The exact acreage to be determined by survey….The boundaries of the two parcels have been agreed upon by the parties. . . . [U]pon completion of the survey the two legal descriptions shall be attached to this contract.”
Prior to signing the contract, Schuler and Graf walked the property and discussed the proposed boundaries, marking some boundaries as they went. After the contract was signed, but before the survey was completed, Schuler asserted that the contract did not contain a legal description of the property and that no meeting of the minds existed.
The completed survey indicated that Parcel B was 7.64 acres, not the 6 acres put to writing in the contract. Schuler refused to sign any more paperwork, indicating that she did not wish to sell the land.
The Grafs filed a lawsuit and a lis pendens notice, and Schuler put forth the affirmative defenses of failure to satisfy the Statute of Frauds, absence of a meeting of the minds, and unenforceable contract.
The land was surveyed again, and the eastern boundary of Parcel B was adjusted to reflect Schuler’s understanding of the boundary, shrinking the size from 7.64 acres to 6.896 acres.
During a bench trial, both Schuler and Graf testified to their understandings of the boundaries of the land to be sold based upon their walk and conversation. Schuler testified that she had agreed to sell the Grafs some property, but disputed one boundary established by the survey and Graf’s testimony. The trial court ruled that there was a meeting of the minds on the description of the land, the boundaries had been agreed upon by both parties, and the contract should be honored. Schuler appealed.
The court of appeals wrote that to comply with the Statute of Frauds, a contract for the sale of land must: 1) be signed by the party against whom the action is being taken, 2) describe each party and the land with reasonable certainty, and 3) state the terms and conditions of promises made with reasonable certainty. The writing must also contain all terms without resorting to the parol evidence rule. The court stated that terms could be abstract or general, as long as they could be applied to identify the parcel “to the exclusion of all other property.”
Here, the court held that the contract in question adequately provided a means of identifying the property. Although the contract only described the land to be sold in terms of acreage, it did provide that “the boundaries of the two parcels have been agreed upon by the parties,” indicating the existence of an understanding between Schuler and Graf. Testimony confirmed that the two parties walked the land together and agreed upon boundaries using landmarks, monuments, and adjacent boundaries. The description of the land in the contract signed by both parties was sufficient to meet the requirements of the statute of frauds. The court then held that the parties entered into a contract for the sale of real estate and a meeting of the minds occurred. Accordingly, the court of appeals affirmed.
Editor’s Comment: The editor admits to being perplexed. If the rule is that the contract must contain an description of the property ascertainable without parole evidence, then how can the evidence of the parties’ placing boundaries on the property be admitted? There was no reference to such activity in the contract. And without the monumentation, it would appear that there is no evidence of agreement on the boundary except in the parties’ minds.
If this is a valid description, then what is left of the requirement for a writing? Surely it would be possible in every case to argue that the parties knew what they agreed, but just didn’t put it into a writing. Normally this would not satisfy the Statute.
DEEDS; DESCRIPTIONS: Reference to subdivision lot by lot number “per the recorded plat thereof” adequately incorporates recorded amendments to the plat that revise the boundaries of the lot in question. Goad v. Ulrich, 13 S.W. 3d 738 (Mo. App. 2007)
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