IN THE COURT OF APPEALS OF TENNESSEE
EASTERN SECTION AT KNOXVILLE FILED
May 13, 1997
Cecil Crowson, Jr.
Appellate C ourt Clerk
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 Crum, Greeneville, for Appellant
Douglas L. Payne, Greeneville, for Appellees
OPINION
INMAN, Senior Judge
The issue in this case is whether two (2) writings afford intrinsic proof of their
relation to the same transaction thus obviating the defense of the Statute of Frauds.
The Chancellor sustained the specially pleaded defense, and we affirm.
In early 1995 the defendants orally agreed to sell to the plaintiff 21.5 acres in
Greene County, Tennessee, for $60,000.00.
The plaintiff prepared a document which 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. Crum, am making a $250.00
deposit on the 20 acre lot owned by Mattie Lawing and on the 1.5 acre lot
owned by Vestel Lawing. This land is located joining Pinto and Holley
Creek Roads.
s/Mattie Lawiing
(Wife) (Notary)
FL L520-542-27-621 Ex 4-1-97
s/Vestel Lawing s/Jimmy L. Crum
(Husband) (Buyer)
FL L520-863-26-104 Ex 3-17-2000
STATE OF FLORIDA
COUNTY OF VOLUSIA
The foregoing instrument was acknowledged before me on this 5th day
of May, 1995 by Mattie and Vestel Lawing, who is personally known to me
or who has produced Fla. Drivers Lic. as identification and who did (did
not) take an oath.
s/Carol Rawlins
Carol Rawlins
OFFICIAL NOTARY SEAL
CAROL RAWLINS
NOTARY PUBLIC STATE OF FLORIDA
COMMISSION NO. CC207098
MY COMMISSION EXP. JULY 26, 1996
The plaintiff enclosed a check for $250.00, which the defendants endorsed and
cashed. On the same day they executed the document which was returned to the
plaintiff. The check bore the notation "down payt. on land."
About three weeks later the defendants decided not to honor their oral agreement
and sent a check for $250.00 to the plaintiff which he refused. This action for specific
performance soon followed.
Our review is de novo on the record, accompanied by a presumption that the
findings of fact of the trial court are correct unless the evidence otherwise
preponderates. RULE 13(d), TENN. R. APP. P. There is no presumption of correctness
with regard to the trial court's determination of questions of law. NCNB v. Thrailkill, 856
S.W.2d 250, 153 (Tenn. App. 1993).
The Statute of Frauds, 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 contract for the sale of lands .
. . 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 . . . "
If the contract for the sale of land is oral it is unenforceable unless there is a
written memorandum of it signed by the Seller. Patterson v. Davis, 192 S.W.2d 227
(1945). Whether the memorandum is sufficient to satisfy the Statute is a question of
law, Massey v. Hardcastle, 753 S.W.2d 127 (Ct. App. 1988), the resolution of which is
dependent on the peculiar factual scenario.
For instance, in Massey, which involved the sale of an automobile dealership, the
memoranda failed to describe the real estate occupied by the dealership. The Court
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held that the documents simply failed to set out an agreement for the sale of a particular
tract of land and were unenforceable.
In Baliles v. Cities Service Company, 578 S.W.2d 621 (Tenn. 1979), the
memorandum alleged to satisfy the Statute provided:
"Cities Service Company has agreed to sell to you Lots 99 and 100 in
Cherokee Hills for residential purposes. As soon as residences are well
under construction deeds to those lots will be delivered to you."
The Supreme Court held that this description failed to describe the land with
reasonable certainty and did not satisfy the Statute of Frauds.1
In Campbell Farmers Co-Op v. Moore, 303 S.W.2d 735 (1957), the memorandum
alleged to satisfy the Statute of Frauds provided:
This is to certify that I am receiving this $100.00 check as a down
payment on land beginning at the culvert on 736 highway 63 running with
the middle of the stream and then parallel with driveway on Mrs. John Y.
Moore's property to the Highway fronting on the Highway 63 to include
one acre of land. Balance of 2900.00 to be paid upon completion of this
transaction. Jan 17, 1956.
s / Mrs. John Y. Moore "Ollie"
This description was held to be insufficient to satisfy the Statute of Frauds because it
did not reference the State, County or Civil District, and did not identify Highway 63, nor
the culvert or stream. In Denison-Ghalson Dry Goods Co. v. Hill, 135 Tenn. 60, 185
S.W. 723 (Tenn. 1916), the description was held to be inadequate because there was
no indication of the residences of the parties. In Wood v. Zeigler, 99 Tenn. 515, 42
S.W. 447 (Tenn. 1897), the description was held to be inadequate because the State
and County were not identified. In Gorbics v. Close, 722 S.W.2d 672 (Tenn. App.
1986), a description, "a one acre tract of land on the northwest corner of my land," was
held to be inadequate.
The document relied on by the plaintiff is characterized by the defendants as
merely being a receipt. On the face of it, we are constrained to agree, especially when
the accompanying check is considered. While the consideration or the manner of its
payment is not necessarily required to be recited, Cobble v. Langford, 230 S.W.2d 194
(Tenn. 1950), the memorandum must contain the essential terms of the contract
1
Specific performance was ordered, however, on the basis of equitable
estoppel.
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expressed with such certainty that they may be understood, from the memorandum
itself, or some other writing to which it refers or with which it is connected without
resorting to parol evidence. Lambert v. Home Federal 481 S.W.2d 771 (Tenn. 1972).
In the case at hand, the document can hardly be characterized as a
memorandum of a sale of real estate. The party to be charged agrees to nothing.
While no particular verbiage is required, the fact of a sale, and its essential terms, and
a description of the land must appear with reasonable certainty in the writing relied
upon. See, Case v. Brier Hill Collieries, 145 Tenn. 1, 235 S.W. 57 (1921). We are
mindful that the Statute of Frauds should not be applied in such manner as to foster a
fraud it was designed to prevent, see, GRW Ent. Inc. v. Davis, 797 S.W.2d 606 (Ct.
App. 1990), but neither should we fail to accord it the requisite enforcement.
The Judgment is affirmed at the costs of the appellant.
__________________________________
William H. Inman, Senior Judge
CONCUR:
_______________________________
Houston M. Goddard, Presiding Judge
_______________________________
Charles D. Susano, Jr., Judge
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