— If any material term of a written contract, has been omitted by the parties, it cannot be supplied by parol. To permit this, would be at once to abrogate the statute of frauds, as was held by this court, in the case of Adams v. McMillan, Executor, 7th Porter, 73. See also the case of Clinian v. Cook, 1 Schoale & Lefroy, 22, where all the cases on this subject are learnedly examined, and Beard v. White’s administrator at the present term.
*465What then does the written contract relied on in this case contain, and in what is it deficient. It proposes the erection of sixteen tenements on St. Francis street, between Dearborn and Wilkinson streets, in the city of Mobile, the size and description of which are minutely ascertained; it further proposes that the complainant shall do the brick work and plastering of the sixteen houses, at stipulated prices, the whole of which amounts to two thousand nine hundred dollars, and in consideration thereof, the respondent agrees to “give a deed for three of the herein named tenements, rating each at one thousand dollars; and agrees to take the complainant’s obligation for the balance of the amount whatever it may.” It is deficient in not stating the size of the lot; the particular tenements which were' to be conveyed, and the covenants which the deed was to contain.
The word tenement employed by the parties, is one of large signification. Lord Coke says, “ tenement is a large word to pass not only lands and other inheritances which are holden, but also offices, rents, commons,'profits, apprendre out of lands, and the like, wherein a man hath any frank tenement, and whereof he is seized.” Coke Litt. 1 vol. 219. The word tenement was therefore sufficient to pass a house and the lot of land on which it stood, with its appurtenances as ascertained by the enclosure; and is, indeed, the appropriate word to include all this without a paraphrase. See also, Doe, ex dem Clemens v. Collins, 2d D. & E. 498, and Doe on the demise of Walker v. Walker, 3 B. & P. 375; Barry v. Coombe, 1 Peters’ Rep. 640.
The question, which three of the sixteen houses the complainant was to receive, is admitted to be one of more difficulty.
It is laid down by one of the ablest of the English judges, Sir William Grant, in the case of Ogilvie v. Folgambe, 3d Murvale 52; that parol testimony is always admissible, to show the subject matter of the contract. He says: “ the subject matter of the agreement is left, indeed, to be ascertained by extrinsic evidence and for that purpose such evidence may be received.
*466The defendant speaks of ‘Mr. Ogilvie’s house,’ and agrees to give ¡014,000 for the ‘premises,’ and parol evidence has always been admitted in such a case, to show to what house, and to what premises the treaty related.”
If the houses in this case had been built, when the agreement to convey three of them was entered into between the parties, parol evidence would have been admissible to show to which of them the contract related; or in the language of the case just cited, to explain the subject of the contract. But this is a much stronger case. Here the houses were not built at the making of the contract, and could not be well designated; nor was a designation necessary, as they were all to be alike, and all of the same value: and if the parties themselves had not, while the work Was in progress determined which should be allotted to the complainant, no difficulty could have arisen on that score. But the contract was designedly left open in this particular, and supplied afterwards, as appears most conclusively from the proof, by the agreement of the parties, to which they will be held by this court.
It would indeed be a reproach to our law, if a contract of this description could be evaded, because the subject matter on which the contract was to operate, was not definitely expressed, when the very object of the contract was to give existence to the subject on which it was to operate.
The defence set up by the defendant that the agreement was intended as a mortgage, is not made out by the proof. The execution of the notes by the complainant, which were to be discounted in bank, is not of itself sufficient to establish that fact. The declarations of defendant to Mayrant in the absence of the complainant, are entitled to no weight whatever.
It appears both from the bill and answer, that alterations were made in the original plan, by adding six feet to the rear of the lots, and erecting kitchens. This was done at the instance of the defendant, and assented to by the complainant. It was a verbal alteration of the written agreement, by the consent of the parties, which as it was prejudicial to the defendant* and for the benefit of the complainant, it is but right he should *467be compensated for. The books are full of cases establishing the principle that a court of chancery will not decree a specific performance, where it would operate injustice to the defendant. The complainant in this case admits that he consented to the additional outlay, and cannot obtain a decree for specific performance but on the terms of making compensation for the additions made with his consent, which indeed he professes a willingness to do.
It remains but to consider whether the contract is defective, in not describing the character of the deed, to be executed to the complainant. A deed as the term is employed in this contract, must mean a deed in fee simple; as it is clear that the parties contemplated that the complainant should be the owner of the three tenements; but as no warranty was stipulated for, none can be implied but what flows necessarily from the agreement to convey. As a deed to the lots would be of no. value to the complainant, if the respondent had previously conveyed to another, or incumbered it to their value, it follows that the deed contemplated by the contract, was at least the title of the grantor, free from any incumbrance, done or suffered by him; any other title would be merely illusory.
The decree of the court below is therefore reversed, and the cause remanded, with instructions to the chancellor to cause an account to be stated between the parties, charging the complainant with the value of the additions made to the tenements by the additional six feet of ground, and the erection of kitchens, and allowing him the rents received by the defendant, since the time when the tenements by the contract, should bave been conveyed; that the defendant convey by deed in fee simple, the tenements described in the bill, numbered three, four, and five, with covenant of warranty against any deed, or incumbrance, executed, done, or suffered by him. Let the defendant pay the costs of this court.