The plaintiff in error argues together the first, second, third, fourth, fifth, and sixth assignments of error, which raise substantially the questions: (a) Whether, under the evidence (which it is admitted is correctly summarized in the findings of fact by the court, except finding No. 10, which, it is claimed, is a conclusion of law) the plaintiff is entitled to recover; (b) whether the lower court erred in overruling the demurrer to the amended petition; (c) whether the plaintiff's cause of action is barred by the statute of limitations; (d) whether the contract is void under the statute of frauds. *Page 668
If it be admitted that there was a misjoinder of causes of action, the error was harmless under the provisions of section 6005, Rev. L. 1910, because, after an examination of the entire record, we cannot say that the error complained of has probably resulted in a miscarriage of justice. See Mullen v. Thaxton,24 Okla. 643, 104 P. 359, which holds that, although a demurrer may have been improperly overruled, yet if the demurrant was not harmed by such ruling, the judgment will not be reversed.
The other questions require a construction of the contract. The trial court having found that O.B. Kee took with notice of the contract, it very properly held also that the contract between Satterfield and A.F. Kee and the deed must be construed together. Rev. L. 1910, sec. 952. The terms of this contract are somewhat confused, but we think the proper construction is that A.F. Kee purchased the land for the consideration of $5,000 in cash, and $1,000 in lots, when the same were platted and laid out. In other words, the real consideration was $6,000, $5,000 of which was to be paid in cash, and $1,000 worth of lots when the location of the Southwestern Normal College was finally settled, and the land platted and laid out in lots, which was to be done within 30 days after the location of the Southwestern Normal College was finally passed upon. The contract, however, contains this further seeming contradictory provision:
"That said Satterfield agrees to pay the market price of these lots at the time they are set apart and conveyed to him."
Section 946, Rev. L. 1910, provides:
"A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful."
Section 951:
"The whole of a contract is to be taken together, so as to *Page 669 give effect to every part, if reasonably practicable, each clause helping to interpret the others."
Section 957:
"A contract may be explained by reference to the circumstances under which it was made, and the matter to which it relates."
Section 958:
"However broad may be the terms of a contract, it extends only to those things concerning which it appears the parties intended to contract."
Applying these rules of construction, it will be noted that the consideration set out in the contract is:
"$5,000.00 to be paid in cash * * * and the further consideration of $1,000.00 worth of lots to be platted and laid out," etc.
The provision in the contract that Satterfield "agrees to pay the market price for said lots at the time the same are set apart and conveyed to him," must be construed as fixing the value of lots he was to take in liquidation of the $1,000 worth of lots provided for as a part of the consideration, and which could not be ascertained at that time, and he agrees that the value of such lots shall be fixed at the time they are set apart and conveyed to him. This seems to us the only reasonable construction that can be placed on this contract to give effect to all of its terms. To say that the contract means that Satterfield sold the land for $5,000 cash, and reserved the right to buy back lots worth $1,000, after they had been surveyed, is to entirely ignore the provision which expressly makes $1,000 worth of lots a part of the consideration for sale, while the construction we have given it gives force and meaning to all of its terms. *Page 670
What is above said disposes of the questions raised by the plaintiff that the contract is void under the statute of frauds. The argument of the plaintiff in error is that, because the description of the $1,000 worth of land is indefinite, the contract is void under the statute of frauds. This argument is founded on the construction of the contract claimed by the plaintiff in error that by it Satterfield was to buy $1,000 worth of lots after they have been surveyed, but under the construction we have given the contract, it is a part of the purchase price, and, of course, the statute of frauds has no application.
This brings us to the question whether, under the findings of fact, the plaintiff below was entitled to recover, and, was there error in overruling the demurrer to the evidence? These may be considered together. The plaintiff in error does not set out any abstract of the evidence in his brief, because he says that the findings of fact by the court (except No. 10, which he claims is a conclusion of law) is an excellent abstract of the evidence.
We are of the opinion that these facts, taken in connection with the proper interpretation of the contract, are sufficient to warrant a judgment for the plaintiff. The argument of the plaintiff in error proceeds on the theory that this is an action for specific performance under the first cause of action, and of eject-under the second, and that the evidence does not warrant relief for either. But this petition sets out all the facts, and if on these facts the plaintiff is entitled to any relief, which is sustained by the evidence, the judgment is proper.
In Hawkins v. Overstreet, 7 Okla. 277, 54 P. 472, it is held:
"A motion for judgment for the defendant upon the pleadings will not be sustained where, upon any or all the pleadings in the case, taken together, facts are stated which show that the plaintiff is entitled to some legal or equitable relief." *Page 671
On page 280 of 7 Okla., on page 473 of 54 Pac., the court says:
"Plaintiff in error contends that the petition was for wrongful taking and conversion of the property described, that the action was one of trover and conversion, and that the rules of pleading pertaining to the action of trover at common law should have been applied by the court to the pleadings in this case. * * * We have no action of trover. Section 10 of our Code of Civil Procedure provides: `The distinction between actions at law and suits in equity, and the forms of all such actions and suits heretofore existing, are abolished, and in their place there shall be hereafter but one form of action, which shall be called a civil action.' Section 85 of said Code provides: `The rules of pleading heretofore existing in civil actions are abolished and hereafter the forms of pleadings in civil actions in courts of record and the rules by which their sufficiency may be determined, are those prescribed by this Code.' The only rule of the Code for stating the facts in any petition is found in section 87 of said Code, and simply requires that the petition contain `a statement of the facts constituting the cause of action, in ordinary and concise language, and without, repetition.' It is not necessary that the facts should be stated in such manner as would have entitled the plaintiff to a recovery under any particular form of action. It is sufficient if facts are alleged which show a right to recovery by the plaintiff against the defendant under the general principles of law determining the rights of parties, and without regard to what may or may not have been the rules of pleading or stating a cause of action before the adoption of our Code."
This case has been cited with approval in Earl v. Tyler,36 Okla. 179, 128 P. 269.
In the case at bar the petition sets out the written contract, and that the plaintiff in error has never performed his part thereof, and, construing the contract, as we do, that the $1,000 in lots is a part of the consideration for the deed, facts sufficient are alleged to sustain the judgment. In its findings of fact, the court below finds, substantially, that the allegations of the petition are true, and this is sufficient to sustain the judgment, unless the *Page 672 cause of action, is barred by the statute of limitations, which we will not consider. We agree with the plaintiff in error that there is no trust relation between Satterfield and O.B. Kee sufficient to toll the statute, but the relation is that of vendor and vendee, and the action must be treated as one for the recovery of a balance due on the purchase money. We do not agree with the contention of the defendant in error that the statute did not begin to run, because this has never been a proper statutory dedication. It appears that the defendant in error, together with his wife, filed a plat of their land, laid off in lots, blocks, streets, and alleys, which was duly filed for record on August 7, 1902, and lots sold in accordance therewith. This was a sufficient common-law dedication. See Elliott on Roads and Streets, page 91; Morgan v. Railway Co.,96 U.S. 723, 24 L. Ed. 743; City of Cincinnati v. White, 6 Pet. p. 431, 8 L. Ed. 452; New Orleans v. U.S., 10 Pet. 662, 9 L. Ed. 573; Bank v. Oakland, 90 Fed. 698; Davenport v. Buffington, 97 Fed. 234.
In Morgan v. Railway Co., 96 U.S. 723, 24 L. Ed. 743, the court says:
"All that is required [to make a valid dedication] is the assent of the owner and the use of the premises for the purposes intended by the appropriation. The law considers the owner's acts and declarations as in the nature of an estoppelin pais, and precludes him from revoking the dedication."
But we are of the opinion that the platting and dedication of this land did not start the running of the statute. The contract does not provide that on the platting and dedication Satterfield should be entitled to $1,000 worth of lots, but —
"that he agrees to pay the market price for said lots, at the time the same are set apart and conveyed to him by proper deed of general warranty."
As we have construed the contract, this means that the balance *Page 673 of the purchase price, to wit, the $1,000 worth of lots, is to be paid when the lots were set apart and conveyed to him. This it was the duty of Kee to do, he having notice of the contract, and, having failed to do so, he cannot claim that the statute began to run before he had fulfilled the obligations imposed on him by the contract. In 7 Encl. Supreme Court of the United States Court Reports, 1015, it is said:
"Where payment is provided out of a particular fund to be created by the act of the debtor, he cannot plead the statute of limitations, until he shows that the fund has been provided."
The court found as a fact that the demand on Kee was made about four years after this transaction, which would make the demand in 1906, and this action was commenced on October 29, 1909. As we construe this contract, the action was not barred until five years after the demand. The statute of limitations therefore does not bar it. We have carefully read and considered the numerous cases cited by plaintiff, but none of them conflict with what we have said. They are in point on the construction of the contract contended for by the plaintiff in error, but as we do not agree that this is the proper construction, they have no application to the instant case.
The next assignment of error is that the court erred in entering a personal judgment againse O.B. Kee. This, in our opinion, is well taken. Under the facts found by the court, O.B. Kee was not a party to the contract between his brother, A.F. Kee and Satterfield, although he took with notice of it. This is not sufficient to render him personally liable. In 39 Cyc. 1877, it is said:
"The right of a personal decree applies only where the defendant is personally liable for the debt, and does not extend to one who was not a party to the contract of purchase."
This statement of law is well supported by authority. *Page 674
In Wilson v. Lyon, 51 Ill. 530, it is held that where there is a right to enforce a vendor's lien against the defendant on the ground that he had notice that the purchase money was not paid, the decree should be in rem and not in personam.
The question is raised by the brief of the plaintiff in error that the court erred in giving the defendant in error a vendor's lien on the portion of the property remaining unsold in the hands of O.B. Kee. No objection was made to this part of the judgment in the motion for a new trial, nor is any error assigned on this point, unless the tenth assignment "that the court erred in rendering its judgment" can be construed to attack this part of the judgment. We do not think that it can, but in any event we think the judgment is supported byRhodes v. Arthur, 19 Okla. 520, 92 P. 244.
We, therefore, recommend that the judgment be modified by eliminating therefrom the personal judgment against O.B. Kee, and, as thus modified, that it be affirmed.
By the Court: It is so ordered.