Majority
p. 552Rollin vs. Pickett.
Headnote
Where, by a memorandum in writing, one party agreed to convey to another seven, ty acres of land at $20 per acre—$500 to be paid on a certain day, and the remainder in four annual payments—the vendee “ to have half the wheat on the piece that is to be sowed by H. R. not exceeding seven acresHeld, in an action for the $500, that the contract was void, inasmuch as it contained no description of the land, nor any thing by which it might be identified, and therefore the plaintiff could not recover.Assumpsit tried before Dayton, O. Judge, at the Livingston circuit, in September, 1840. The action was brought .on an agreement in writing in the following words : “ Rec’d of B. Pickett thirty dollars in part payment for seventy acres of land, that I agree to B. Pickett at twenty dollars per acre, to pay one hundred down or at twenty days, and five hundred the first day of October-next, at which time I agree to make a deed of the same—the remainder to be paid in four annual payments with interest from the execution of the deed on security,—B. Pickett is to have half the wheat on the-piece that is to be sowed by Henry Rollin, not exceeding seven acres. July 1,1839. B. Pickett is to pay Rollin ten dollars, provided the wheat is put in a workmanlike manner. (Signed) Austin RollinThe plaintiff sought to recover $500, as being due on the 1st of October, 1839. Evidence was given and several questions were raised on the trial, which need not be stated. A verdict was taken for the plaintiff, subject to the opinion of this court on a case.
C. L. Clarke, for the plaintiff.
J. B. Skinner, for the defendant.
By the Court,
The seventy acres of land to be conveyed are neither described in the contract, nor is there any thing from which it can be ascertained on what part of the earth the premises may be found. In
p. 553
Fish v. Hubbard, ( 21 Wend. 651 ,) which goes far enough, the parties spoke in their contract about water, mill-dam, fulling-mill and carding-machine—the grist-mill and sawmill. But here they have not mentioned any existing mark or thing by which the land may be identified and located. The only words on which the plaintiff can rely to get rid of the difficulty, are these: “ B. Pickett is to have half the wheat on the piece that is to be sowed by Henry Rollin not exceeding seven acres.” Mow, suppose it should be ascertained that Henry Rollin had before that time agreed with the plaintiff, or with some one else, or that he had a settled purpose in his own mind, to sow some particular piece of land, not exceeding seven acres, with wheat, how could it be ascertained in what manner the remaining sixty-three acres were to be located ? It is not said that the seven acre piece was part of a farm or lot of land, or that the plaintiff was to convey a farm or lot of land containing seventy acres. In Fish v. Hubbard, the defendant was to furnish water out of the mill-dam sufficient to carry the fulling-mill and carding-machine. When the water, the dam and the mills should • be found, there could be no difficulty in settling the proper mode of enjoyment. But here, should we find out where Henry Rollin intended to sow seven acres of wheat, we should still be utterly in the dark as to which way— whether north, south, east or west—the defendant was to go to get his remaining sixty-three acres. Although contracts ought, if possible, to be upheld, I think this is void for the want of certainty in describing the land. There are one or two other difficulties in the way of supporting this action, but they need not be considered.
Judgment for defendant.