4. SPECIFIC PERFORMANCE: Land encumbered with mortgage.
A vendor who has contracted tor the sale of land on which he had executed a previous mortgage can not object to the performance of the contract on account of the encumbrance if the vendee is willing to accept it in that condition.
APPEAL from Miller Circuit Court.
Hon. C. E. MITCHEL, Circuit Judge.
Argument for Appellant
Dodge & Johnson for Appellant.
The blank contract was no contract, and as far as that instrument is concerned is of no avail to take this case out of the Statute of Frauds.
That as to the receipt first above referred to, it can be of no avail here. Although purporting to be for purchase money made upon land, it makes no mention of any land of any kind, or description or location, but contents itself by referring to certain land "as expressed in the contract number 2,444," and when we come to refer to that contract we find it is the blank form above quoted. This receipt, coupled with the alleged contract, can avail nothing, and is clearly within the Statute of Frauds.
We come to the certificate last above quoted, and upon this memorandum in writing, coupled with the other, Beidler relies to take the sale out of the Statute. But the attempt can but prove futile; and for three reasons:
1st. It is not such a memorandum in writing as is contemplated by the Statute of Frauds, in this, that it does not describe the lands with such certainty that they can be identified, giving neither the County nor State, nor metes and bounds.
2d. Because, by the terms of the memorandum, it purports to have sold a certain number of acres out of an 80-acre tract, which shall irclude all of said 80 acres not reserved for a steam pump, and for company purposes. What the reservation was, where located, when, how, and by whom, could only be ascertained by parol evidence; and
