(dissenting):
I dissent on the ground that the Earnest Money Receipt and Offer to Lease dated April 15, 1975 was insufficient in its description of the property to be leased and sold and thus did not comply with the statute of frauds.
A written agreement or memorandum which is relied upon to satisfy the statute of frauds must contain all the essential terms and provisions of the agreement of the parties. Birdzell v. Utah Oil Refining Co., 121 Utah 412, 242 P.2d 578 (1952); Baugh v. Logan City, 27 Utah 2d 291, 495 P.2d 814 (1972). When applied to agreements for the sale or leasing of an interest in real estate, the rule requires a sufficient description of the real estate to be leased or sold. Adams v. Manning, 46 Utah 82, 148 P. 465 (1915). In that case the writing which was relied upon by the buyer for specific performance read:
October 19,1907. Received of H.W. Manning thirty dollars ($30.00) as part payment of 30 acres of land. Price to be $100.00 for said land. D.C. Adams.
46 Utah 2d at 83, 148 P. at 465. We held that to be an insufficient description to take the sale out of the statute of frauds. Similarly, in Baugh v. Logan City, supra, a reference in the minutes of the meeting of the Board of City Commissioners referring to certain property as the “City Property” was held to be an insufficient description to take an alleged oral exchange contract out of the statute of frauds. Again, in Pitcher v. Lauritzen, 18 Utah 2d 368, 423 P.2d 491 (1967), a description was held insufficient which merely stated “30 acres in North Logan as indicated by map.” No map was shown the seller, who was the party sought to be charged, at the time the agreement was made.
On the other hand, we have held as not within the statute of frauds a contract provision which allowed the buyer to select the property from a larger tract owned by the sellers. Calder v. Third Judicial District Court, 2 Utah 2d 309, 273 P.2d 168 (1954). And in Brady v. Faucett, Utah, 546 P.2d 246 (1976), we upheld as sufficient a contract prepared by the vendor wherein he agreed to supply the description from documents at his disposal. These cases can be readily distinguished from those cited and discussed in the preceding paragraph of this opinion because the contract itself provided a definite means by which the location and description of the land could be determined without admitting parol evidence as to what each party intended.
A more difficult situation was presented in Davison v. Robbins, 30 Utah 2d 338, 340, 517 P.2d 1026, 1028 (1973), where the property was described:
Property in question is briefly described in preliminary title report No. U-102434, Schedule A, issued Oct. 24, 1970 by Stanley and Sons, Inc. of Heber City, Utah, less any acreage reserved by seller. Of*1278fer contingent upon buyer’s approval of net acreage description and grant deed executed and deposited in escrow.
The question there arose as to whether pa-rol evidence was admissible to make certain the actual property the parties intended to sell and buy. In answering that question, this Court followed a well-recognized rule that “parol evidence is admissible to apply, not to supply, a description of lands in a contract.” In denying specific performance we said:
Parol evidence may be used for the purpose of identifying the description contained in the writing with its location upon the ground, but not for the purpose of ascertaining and locating the land about which the parties negotiated, and supplying a description thereof which they had omitted from the writing. There is a clear distinction between the admission of oral and extrinsic evidence for the purpose of identifying the land described and applying the description to the property and that of supplying and adding to a description insufficient and void on its face.
517 P.2d at 1029.
I believe the above to be a correct statement of the law. We first recognized this distinction between admitting parol evidence to simply locate on the ground the description contained in the writing and admitting it for the purpose of adding to a description incomplete on its face in 1915 in Adams v. Manning, supra. There we held that parol evidence was admissible to identify the property mentioned in the agreement or memorandum when it is referred to simply as a house and lot on a certain street, or a certain farm or property by its usual name. See Eliason v. Watts, Utah, 615 P.2d 427 (1980); Nielsen v. Rucker, 8 Utah 2d 302, 333 P.2d 1067 (1959); and Easton v. Thatcher, 7 Utah 99, 25 P. 728 (1891) as examples of the application of this rule.
In the instant case, the property was described in the writing as “real property and/or fixtures and equipment situated at Neola, (420 acre Hackford farm) Uintah County, State of Utah.” Had the Hackford farm consisted only of 420 acres, it would have been entirely permissible to allow pa-rol evidence to identify the bounds of the subject property. The difficulty, however, is that the Hackford farm consists of 445 acres and the parties were in sharp dispute as to the location of 20 of the 25 acres to be excluded from the sale and reserved by the sellers. Under the rule that parol evidence is admissible to apply, not to supply a description, admission of parol evidence to fix the 20 acres was erroneous because the writing did not specify which 20 acres was to be excluded nor give a key by which it could be determined. In this respect, this case is identical to Pitcher v. Lauritzen, supra, and Davison v. Robbins, supra, where the writing did not designate which acreage should be reserved by the seller. The majority opinion attempts to distinguish Davi-son v. Robbins on a different ground, i.e., that the writing there was only an agreement to agree in the future what exact property would be sold. That ground was only one of two grounds relied upon by this Court. The other ground was that parol evidence is not admissible for the purpose of determining what property the parties agreed to buy and sell. That is exactly what the trial court did here since it took parol evidence to determine which 25 acres the parties intended to exclude when the writing did not so specify and gave no key for ascertaining. The writing was an Earnest Money Receipt and Offer to Purchase which by its very terms was intended to be only a temporary binder until a permanent lease could be drawn. It is therefore understandable that the Earnest Money did not contain an adequate description.
The trial court justified admission of the parol evidence as showing part performance and noted that “the occupancy and farming of the acreage by the plaintiffs and the receipt of all lease monies by the defendants for three years of the lease, which lease monies defendants made no attempt to return, memorialized the description of the 420 (acres) .... ” The practice of referring to claimed part performance to aid in the proof of the terms of a contract was cautioned against by this Court in Adams v. Manning, 46 Utah at 86, 148 P. at 466, *1279where we quoted with approval the following statements from Roberts on Frauds, 135:
To call anything a part performance, before the existence of the thing (the contract) whereof it is said to be part performance is established, is an anticipation of proof by assumption, and gets rid of the statute by jumping over it, for the statute requires proof, and prescribes the medium of proof.
We further stated that if possession by the buyer is relied upon as part performance, it should be established without qualification or doubt. In the instant ease there was considerable dispute as to the identity of the exact land possessed by the buyers. Evidence was presented that the sellers had occupied the 20 acres adjacent to the home and built improvements on it, yet at other times had fenced and occupied the 20 acres where the oil well was located. The buyers, who claim that the 20 acres reserved by the sellers was near the home, readily admit that they cut the hay from this ground, and that they made no objection when the sellers allowed oil drilling equipment upon the 20 acres down in the field. This being a case at equity where we are permitted to review the facts as well as the law, I am compelled to conclude that the parol evidence offered to prove the identity of the 420 acres possessed by the buyers was anything but clear and definite. I would deny the buyers specific performance.
I concede that the recent decision of Reed v. Alvey, Utah, 610 P.2d 1374 (1980) contains broad language (quoted in the majority opinion) which seemingly might authorize the admission of parol testimony in the instant case. That case, however, did not purport to overrule any prior decision of this Court and I would limit the broad language to the facts of that case, viz., there was no real dispute as to what property the parties intended to sell or buy since the seller had sold to others all his property at that address except the unit claimed by the plaintiff buyer.
I am in accord with an observation made by Justice Frick in Adams v. Manning, 46 Utah at 86, 148 P. at 466, where he said:
It has, however, always seemed to the writer that unless the courts are very careful in the admission of parol evidence and in acting upon the mere inherent probabilities as such appear to the courts they will, in equity, enforce parol contracts which are clearly within the statute as readily as courts of law enforce all other contracts and we thus entirely fritter away the statute of frauds.
See the dissenting opinion of Justice Wilkins in Stauffer v. Call, Utah, 589 P.2d 1219 (1979). I can only add that what the trial court did here flies in the face of the purpose of the statute of frauds. If the statute served no purpose, then the Legislature should repeal it, but this Court should not make inroads upon it to achieve our sense of justice in a given case.