dissenting.
I dissent.
The facts of this case are a classic example of what the Statute of Frauds was intended to prevent. The problem is whether the cumulative property descriptions in the four separate instruments are sufficient to enforce the two earnest money contracts.
The first contract, summarized in the Court’s opinion, is to convey 36 acres for cash to the Veterans Land Board. The second is to convey 91.55 acres to the Kel-leys. In this transaction the Kelleys were to make a $5,493.00 down payment and the balance was to be evidenced by a promissory note secured by a Deed of Trust.
A Veterans Land Board sale is not a method of financing as to.the Joneses. It is a cash sale, conveyed to the Veterans Land Board of Texas (VLB) by general warranty deed. The VLB enters into a contract for deed with the veteran purchaser. We have two contracts to convey two tracts of land to two purchasers with two deeds, one to the VLB and one to the Kelleys. We must determine if the property descriptions are sufficient to enforce each of these conveyances.
The Statute of Frauds, Section 26.01 of the Business and Commerce Code, provides:
Section 26.01. Promise or Agreement Must be in Writing.
(a) A promise or agreement described in Subsection (b) of this section is not enforceable unless the promise or agreement, or a memorandum of it, is
(1) in writing; and
(2) signed by the person to be charged with the promise or agreement or by someone lawfully authorized to sign for him.
(b) Subsection (a) of this section applies to
(4) a contract for the sale of real estate;
This Court has held that the writing must furnish within itself, or by reference to some other existing writing, the means or data by which the particular land to be conveyed may be identified with reasonable certainty. U. S. Enterprises, Inc. v. Dauley, 535 S.W.2d 623 (Tex.1976); Williams v. Ellison, 493 S.W.2d 734 (Tex.1973); Morrow v. Shotwell, 477 S.W.2d 538 (Tex.1972); Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150 (1945).
The two earnest money contracts provide: “Seller to furnish current survey by registered surveyor .... ” It is undisputed that a current survey did not exist when these contracts were signed. The field note description, subsequently attached to Instrument No. 3, cannot be considered because it was not “some other existing writing” as required by U. S. Enterprises, Inc. v. Dauley, supra, Williams v. Ellison, supra, Morrow v. Shotwell, supra, Wilson v. Fisher, supra, and Hobbs v. Bass, 279 S.W.2d 480 (Tex.Civ.App.—Texarkana 1955, writ ref’d n. r. e.).
Instruments 1, 3 and 4 refer only to the VLB sale. The third instrument, the application and contract for sale, provides no assistance. The only description is “36 acres located in W. W. Wagstaff survey, A-796 Shelby County, Texas 12 miles N. (direction) from Center (County Seat), Texas .... ” The fourth instrument, Affidavit of Seller — Veterans Land Board, states that the 36 acres is a part of 127.55 acres that the Joneses purchased from C. Balsimo in May 1970. This Court has held such a description to be insufficient. In Smith v. Sorelle, 126 Tex. 353, 87 S.W.2d 703 (1935), we held that a deed purporting to convey *102land, which describes it only by quantity and as being part of a larger tract, with nothing to identify what specific portion of the larger tract is intended to be conveyed, is invalid for uncertainty of description. In Pfeiffer v. Lindsay, 66 Tex. 123, 1 S.W. 264 (1886), this Court held the following description to be insufficient:
“[F]ifty acres of the J. M. Moss survey, abstract No. 462, situated near the town of Burlington, in Montague county, Texas.”
The second contract, the earnest money contract between the Joneses and the Kel-leys, described the land to be conveyed to the Kelleys as follows:
“91.55 acres out of the W. W. Wagstaff survey A-796 and D. G. Green survey A-263 in Shelby County, Texas.”
This contract is lacking for the same reason as the 36 acre contract. Additionally, this 91.55 acre tract lies in two surveys, Wag-staff and Green, and the 36 acre tract was to be taken only from the Wagstaff survey.
As evidenced by the two earnest money contracts, the Joneses and Kelleys contracted for two separate conveyances. There is no way to determine which 36 acres will go to the VLB without lien or to which portion the Joneses are to retain their lien. These factors are highly significant to the VLB and to the Joneses. The VLB application and contract of sale provide that if the 36 acres does not abut on a public road the seller will provide a usable easement to a public road. The Kelleys attempted to show that the 36 acres was to have been at the back side of the farm and not abutting on a public road. However, no attempt was made to provide a description of the easement. Whether the land on which the Joneses were to retain a lien abutted on a public road and whether the land was to be encumbered with an easement would be decisive to them.
The four instruments fail to provide sufficient description to comply with the Statute of Frauds.
GREENHILL, C. J., and POPE and BARROW, JJ., join in this dissenting opinion.