(dissenting):
This appeal from the Circuit Court of Russell County involves a suit for reformation and specific performance of a January 6, 1973, real estate sales contract for approximately seventy (70) acres of land for $21,000, free and clear of all encumbrances.
The sellers’/appellees/ (the Gunters) defense was vagueness of the contract, failure to agree on a specific 70 acres, inability to convey free and clear of encumbrances, and alteration of the contract. The trial Court in refusing to reform the contract or to grant specific performance concluded that the parties are in complete disagreement as to the west boundary and that the contract is impossible for the sellers to perform as to quantity and quality of title. Hence this appeal.
Two substantive issues are presented: 1. Whether a buyer can require a seller in equity to perform his contract to the extent he is able, where the seller, without the knowledge of the buyer, contracts to sell a greater interest than he has in certain real estate. 2. Where the legal description is not set out with absolute certainty in the sales contract, but the seller subsequently fixes the legal description pursuant to his contractual obligation to furnish a warranty deed, can specific performance be enforced by the buyer against the seller? Stated otherwise, this second issue is whether the seller is estopped from asserting the uncertainty of the description as a defense to the performance of the sales contract where he, pursuant to his contractual obligation to furnish a warranty deed, more particularly fixes the boundaries of the property in question, and where the buyer is willing to accept the property as so described.
I would resolve both issues in favor of the appellants-buyers (the Websters) and, therefore, I would reverse and remand with instructions.
On January 6, 1973, the date the sales contract for the 70 acres was executed, the Gunters were joint owners of an undivided one-half interest in a 199-acre tract of land. The land was encumbered by a mortgage to the Federal Land Bank with a $7480 principal balance. The 199 acres was divided by a road with approximately 98 acres located on the east side of the ■road. The 70 acres involved in the instant case was part of the 98-acre parcel. Located on the 98-acre tract was a lake, a tenant house, and a barn that the parties agreed were not to be included in the 70-acre description. The parties agreed that *289the west boundary of the 70-acre tract was to be near the lake which left a grazing strip by the lake for Mr, Gunter’s cattle. Since there were fences or roads on three sides of the 70 acres, the major discussion concerned the fourth side near the lake. Prior to the January 6 signing, the sellers, the buyers, and the sellers’ real estate agent physically walked over the land with the parties discussing where the line representing the fourth side would be located.
At the time the sales contract was prepared, no survey had been run on the 70-acre tract. Without such a survey, the parties executed the contract which gave the best description available at the time. The parties orally agreed that the vendors would have a survey prepared, and James Gunter subsequently employed Henry Moore for that purpose. On direct examination Moore testified as follows:
“Q. Did Mr. Gunter, while you and he were on the land, tell you what to survey out?
“A. Yes sir. Well, Mr. Gunter said he wanted 70 acres, more or less, and he wanted to be sure that the lake was out of it; and we more or less picked the area to go around the lake to leave it out, the part that he wanted to leave out.”
When Gunter saw the survey Moore had prepared, he informed Moore that the west boundary was too close to the lake. In compliance with instructions from Gunter, Moore made a second survey of a 3.4-acre parcel which in effect moved the west boundary of the original 70-acre tract further from the edge of the lake, leaving the parcel as finally platted by the survey containing 66.6 acres.
The mortgagee would not give a partial release on the 199-acre tract, and James Gunter could not get his aunt and uncle who were the other joint owners in the 199-acre tract to agree to sell their interest in the 70 acres.
When the Websters tried to close the purchase of the property specified in the sales contract, the Gunters refused to furnish a warranty deed. The Websters then brought suit for specific performance. Subsequently, the Websters’ attorney discovered that the Gunters owned merely an undivided one-half interest in the property; and the Websters amended their complaint, praying for reformation of the contract and for specific performance as to the Gunters’ undivided one-half interest in the subject land with an abatement of the purchase price commensurate with the interest acquired.
As to the first issue (right of specific performance by buyer as to less than whole interest), the facts here, in all material aspects, are analogous to the facts in our recent case of Christian v. Rabren, 290 Ala. 45, 273 So.2d 459 (1973), and the legal principles set forth therein are fully applicable and controlling here.
The Court below, in holding the contract unenforceable, expressly relied upon Citronelle Turpentine Co. v. Buhlig, 184 Ala. 404, 63 So. 951 (1913). Citronelle is factually distinguishable from the instant case in that in Citronelle one document was signed that was expressly conditional on a subsequent document that was absolutely subject to the approval of a third party. An indispensable element of contract — a meeting of the minds — was there missing.
In the instant case, there was no third party who had the absolute power to give, or refuse to give, approval to the transaction. Indeed, not only did the sales contract not expressly condition its validity on the approval of a third party, but it was the sellers, as well as their agent, who assured the buyers that only their (the sellers’) signatures were required to convey fee simple title. Consequently, here, the sellers could execute a deed to their one-half interest in the subject property, and they could pay off the mortgage with proceeds of the sale, both without approval of a third party.
*290It follows, then, that where, as here, the contract is complete (that is, not conditioned on a subsequent act subject to approval of a third party), specific performance pro tanto at the election of the buyer is a recognizable remedy, and the buyers are entitled to have the sales contract enforced to the extent the sellers are able to convey. Christian v. Rabren, supra.
As to the second issue (uncertainty of description), it is essential to an understanding of any resolution of this problem that we put in perspective the nature and scope of the dispute between the parties. Neither the pleadings (including the pre-trial order) nor the proof focus the 3.4 acres (the difference between the original 70 acres and the corrected 66.6 acres) as the subject matter in dispute. Stated otherwise, if the buyers upon finding the survey stakes as originally placed by Moore marking the western boundary of the 70-acre tract, insisted that this was the precise line agreed upon, and if the sellers countered with the contention that the latter survey containing 66.6 acres was an accurate description, and if this factual issue was framed by the pre-trial order and proof adduced, we should not hesitate to affirm the trial Court under our traditional rules of review.
To the contrary, however, the sellers, while using the 3.4-acre difference between Moore’s first and second surveys as the basis for their contention of uncertainty of description in avoidance of the contract, refused to sell the lesser acreage (66.6). The buyers, on the other hand, do not ground their offer to close the sale (and their prayer for specific performance) on the restrictive condition that the property purchased contain the full 70 acres.'
Moreover, it was the sellers who furnished the general description contained in the sales contract as well as their unilateral act, in complying with their contractual obligation, in having the land surveyed and platted by Moore.
A good statement of the general law, here applicable, is found in 71 Am.Jur.2d, Specific Performance, § 117, pp. 149-150:
“ . . .in order to be specifically enforceable, a contract for the sale of land must describe the land to be sold with sufficient certainty to enable it to be definitely located. But reasonable certainty is all that is required, and if the description of land is sufficiently certain to enable the land to be located and examined, it is sufficient to justify specific performance of the contract. The description need not be given with such particularity as to make a resort to extrinsic evidence unnecessary, and such evidence is allowed in order to apply the written agreement to its subject matter. It has thus frequently been held that in an action for specific performance of such a contract, latent ambiguities in the description of the premises involved may be aided by extrinsic evidence. Extrinsic evidence is admissible to connect a sufficient description to its actual location on the ground.”
Where, as here, any uncertainty that may have existed in the general description furnished by the sellers and contained in the sales contract was subsequently made definite and certain through the unilateral action of the sellers by way of a survey and a plat, the sellers cannot defeat an action for specific performance in the event the buyers are willing to accept the property as subsequently described. Stated another way, it is axiomatic that in order for a justiciable issue of certainty of description to exist, the parties must be in disagreement as to such issue. This is not the case with respect to the 66.6-acre tract.
In summary, so long as the buyers agree to accept an undivided one-half interest in the tract of land encompassed by the revised survey, i.e., the 66.6-acre tract, they should be entitled to specific performance of the contract subject to an abatement of the purchase price commensurate with the sellers’ interest, viz., $10,500, free and *291clear of all encumbrances. Rather than leave the Websters to their remedy at law for the breach of contract, I would reverse and remand with instructions to grant relief by way of specific performance.
HEFLIN, C. J., and BLOODWORTH and McCALL, JJ., concur.