Daily Development for Wednesday, August 7, 2002 by:

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

VENDOR/PURCHASER; STATUTE OF FRAUDS; PROPERTY DESCRIPTION: The Statute of Frauds will void a contract to sell "3949.62 acres, more or less, 20 miles NE of [named city] and 25 miles SW of [named city].

Moudy v. Manning, 2002 WL 1389838 (Tex. App. 6/28/02)

The seller, after a survey, discovered that her land in fact consisted of 600 acres more than she thought, and refused to complete the contract. In a suit for specific performance by the buyer, the trial court entered summary judgment for seller, holding that the Statute of Frauds voided the contract, and the appeals court here upheld that judgment.

The court cited a 1949 Texas case that it claimed sets up a two part test for determination of whether land is identified with reasonable certainty sufficient to satisfy the Statute of Frauds:

(1) The contract contains a "statement of ownership," such as "my property," "my land," or "owned by me;" *and* (2) it is shown by extrinsic evidence that the party to be charged owns only one tract of land fitting the property description.

The court held that the contract here did not satisfy the first part of the test, so that extrinsic evidence was not admissible. The court fought off all efforts by the buyer to argue that the contract contained language specifying that the property to be sold was property that the seller owned at the time of contract. Everything in the contract that referred to "the Seller" or discussed ways in which the Seller would document ownership of the property prior to closing was also consistent with an intent of the parties that the Seller might go out and acquire land to fulfill the contract obligation. Hence, it was not appropriate to ascertain whether the land in question was the only land of the Seller owned in the area.

In the property description, enumerating fixtures and improvements on the property, the parties had included the phrase "and all other property owned by Seller and attached to the above described real property." The court held that this did not mean that the parties were agreeing that the Seller in fact owned any property, but rather concluded that the phrase referred to interests other than title to the real estate that might pass with the sale. Apparently the court was of the view that this phrase might describe interests acquired by the seller prior to closing that were not in fact owned by seller at the time of the contract.

Comment 1: Note that the fact that the estimate of acreage was significantly less than the actual acreage owned by the Seller had nothing to do with the analysis. The contract said that the acreage number was "more or less," and did not state a per acre price.

Comment 2: In commenting on the case in the very fine (but insurer oriented) "Title Insurance Law Newsletter," J. Bushnell Nielson points out that the decision provides a painful practice point. A description solely by acreage, without the additional phrase "being all of my lands in" the locality, is ripe for disagreement, particularly when used in a contract with a fixed purchase price.

Comment 3: Well? If written by a lawyer - malpractice?

Readers are urged to respond, comment, and argue with the daily development or the editor's comments about it.

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