Adams v. Thompson. however, that I have complied with our agreement I shall expect you to return the note for $15, which I herewith enclose. Very respectfully, ISAAC ADAMS." On the 21st of November Thompson wrote Adams as follows: "YANKTON, D. T., November 21, 1885. "Isaac Adams: DEAR SIR-Yours of the 19th is at hand, with two enclosures. My wife requests me to say to you that she refuses to sign the deed, as we are offered $70 for the lumber provided Mr. Shriver gets the land. She don't care to have me sell it at all because she regards it as a good investment. Mr. Shriver claims that he had his papers here first, which is a fact. He has spent three times as much money telegraphing as you have. Shriver don't know that you are bidding against him, or at least I haven't told him, but if you think proper you can see him and ascertain which of you will pay more for the property. If you decide that you can't pay more, I will have all your papers promptly returned, including your note of $15. "Yours truly, E. H. THOMPSON." On the 23d of November this suit was instituted. Thompson having deeded the property to Shriver and Irey and Adams having executed a deed to Riley, the contest is, in reality, between Riley, through Adams, and Shriver and Irey. As we view the case it seems to us that the controlling questions are: First, Does the correspondence between Adams and Thompson constitute a written contract between them for the sale of the property from Thompson to Adams? and second, If so, has Adams complied with the provisions of the contract on his part suffieiently to entitle him to a conveyance? If not, he is not entitled to decree for specific performance, and the land having been conveyed from Thompson to Shriver and Irey, their title must be held good with a decree canceling the deed from Adams to Riley. Adams v. Thompson. By the letter from Thompson to Adams, bearing date November 11, 1885, the proposition was made to Adams to sell him the property in dispute for the sum of $1,000. The tract consisted of five acres. In his letter of October 28 Thompson stated that he would not care to sell for less than $175 per acre, and in the postscript to the letter of November 6 he said that he would not sell for less than $200 per acre, but that if that figure were offered he would be disposed to sell. Evidently with this in view he wrote the letter of November 11, 1885, fixing his price, which was $1,000 for the five acres, or $200 per acre. His terms for the payment of the $1,000 were stated to be $200 cash, $500 in one year, and the assumption of the $300 debt and mortgage due McShane. Nothing was said as to the character of the conveyance to be made, but the whole case shows that the execution of a warranty deed was contemplated. From this we conclude that it was his purpose to deduct the McShane mortgage from the purchase price, free the land from tax liens, and receive a part of the remainder in money and the balance in one year. This offer was unequivocally accepted by plaintiff in his dispatch of the 13th of November. But upon investigation it turned out that the mortgage debt to McShane was $315 (three notes of $105 each) instead of $300, as supposed by Thompson. This $315 was to be assumed by Adams and hence should be deducted from the agreed price. It also appears that there were unpaid taxes of $3.25, which, though not delinquent, were a lien on the land. This, under the proposition contained in the letter of November 11, Thompson would have to pay. The taxes were properly deducted from the cash payment by Adams and the amount due upon the McShane mortgage over and above the $300 from the $500 payment due in one year; and therefore the remittance of money, note, and mortgage by Adams was in strict compliance with the terms of Thompson's offer. But the deduction of $3.25 from the cash payment seems Adams v. Thompson. not to have been objected to by Thompson, for in his letter of November 17 he says, "the amount you have deducted for taxes not due until May will just about pay the interest due McShane at this time," and closes the letter by saying that he would let plaintiff have the land because he "wrote first and agreed to the terms." The first note for $485, forwarded by Adams, did not contain a provision for the payment of eight per cent interest, but this was corrected by a new note sent by plaintiff in his letter of November 19th, and in which he also inclosed his note for $15, which was so much more than he had agreed to pay. We are fully convinced that the correspondence constituted a contract for the sale of the real estate and that plaintiff complied with it on his part to the fullest extent. But it is contended by appellant that there is no such description of the real estate in the correspondence as would entitle the purchaser to a decree for specific performance. The first letter from plaintiff to defendant refers to his (defendant's) lots in McShane's sub. (meaning subdivision). In the answer from defendant he refers to the five acre lot in the same subdivision. The same occurs in defendant's letters of November 6th and November 11th, and throughout the whole of the correspondence there is no question as to the identity of the property. Defendant had no other property in the subdivision referred to, and the correspondence was with reference to that owned by him. This was sufficient to admit parol evidence as to the description. (Atwood v. Cobb, 16 Pick. [Mass.], 227; Hurley v. Brown, 98 Mass., 545; Nichols v. Johnson, 10 Conn., 192; Ogilvie v. Faljambe, 3 Mer. [Eng.], 53; Sanborn v. Nockin, 20 Minn., 178.) The next contention of appellants Shriver and Irey is that they had purchased the property from Thompson prior to the alleged purchase made by plaintiff, and that as between them and plaintiff their equities were superior to those of plaintiff, and that he is not, as against them, en Adams v. Thompson. titled to the decree of specific performance and cancellation of their deed. It appears by the record that on the 5th day of November, 1885, Shriver wrote the following letter to defendant Thompson: "OMAHA, NEB., Nov. 5, 1885. "E. H. Thompson, Esq., Yankton, Dak.: DEAR SIRWhat will you take for your five acres in McShane's subdivision? Have a chance to sell it. Answer on receipt of this and oblige, Yours truly, "W. G. SHRIVER." We are unable to find any answer to this letter, but on the 11th of the same month Thompson sent the following to Shriver: "YANKTON, D. T., Nov. 11, 1885. "W. G. Shriver, Esq.: DEAR SIR-Yours of the 9th is at hand. I will take $1,000 net for the lot, viz., $200 cash, and remainder-$500-in 1 year at 8 per cent, subject of course to the mortgage of $300 and interest due John McShane. Your commission and other expenses attending sale to be paid by purchaser. Should I feel as I do now, a portion, sayor of the $500, could stand longer than 1 year, though I make no absolute promise, as I might need the money very much. The party you have in view can feel surer of getting the lot if he takes the lumber, as I am in receipt of a letter asking me to state my terms, on a proposition of $200 per acre. The party who sold for $800 made a mistake. "Yours truly, E. H. THOMPSON. On the 12th of November, Shriver executed to Irey the following receipt: "OMAHA, NEB., Nov. 12th, 1885. "Received of H. B. Irey fifty (50) dollars, on account of purchase of lot 12 in John A. McShane's subdivision of the N. E. of the S. E. of sec. 30, township 15, range Adams v. Thompson. 13 east, sold him this day for $1,000; $200 cash, $500 in 1 year, and subject to a certain mortgage of $300, favor of John A. McShane, also interest and '85 taxes. "W. G. SHRIVER, Agt." On the same day he wrote Thompson the following letter: "OMAHA, NEB., Nov. 12, 1885. "E. H. Thompson, Esq.: DEAR FRIEND-Yours of the 11th inst. at hand. My man will take your five acres at your proposition-$200 cash, $500 in 1 year, subject to McShane $300 mtg.-at $1,000. I could not get any commission out of him, and if you will allow my small commission out of a $1,000 it will be very acceptable. I will enclose deed, which you will find out, giving your full name and wife, if any, and go before a notary public and have properly acknowledged, and send to me, on receipt of which I will remit you first payment. with me. money "Will have mtg. properly executed, bearing interest at 8% on $500 for one year. The party is out of town, but left instructions and Don't think we will have any trouble with him about the lumber. If so, can sell to some one else, as there is one or two parties out in that neighborhood who will build this winter, and can sell it to them, as they will have to have lumber. Your 5 acres is well sold. Don't you want to buy something else with your money in O.? Return deed at once, and oblige, W. G. SHRIVER." "Y. T., On the 16th of November, and after the receipt by him of plaintiff's dispatch, and by the Yankton bank of the check, note, and mortgage, sent it by plaintiff, he wrote and sent Shriver the following: "YANKTON, D. T., Nov. 16, 1885. "W. G. Shriver, Esq.: DEAR SIR-When your papers arrived the property was considered sold, as I received a telegram from a party informing me he would take the lot |