WILLIAM KEELING v. LINDA McCASKILL

Digitally signed
by Susan P.
Williams
Reason: I attest
to the accuracy
and integrity of Cite as 2020 Ark. App. 497
this document
Date:
ARKANSAS COURT OF APPEALS
2021.02.25 DIVISION II
11:49:35 -06'00' No. CV-20-51

WILLIAM KEELING Opinion Delivered: October 28, 2020
APPELLANT
APPEAL FROM THE CLARK
V. COUNTY CIRCUIT COURT
[NO. 10CV-18-172]
LINDA MCCASKILL
APPELLEE
HONORABLE BLAKE BATSON,
JUDGE

AFFIRMED

PHILLIP T. WHITEAKER, Judge

William Keeling appeals a Clark County Circuit Court order denying his request for

specific performance of a contract for the purchase of land owned by Linda McCaskill. The

circuit court found that the contract was unenforceable because it did not include two

essential terms: (1) an adequate description of the property and (2) a provision for a life estate

in McCaskill. We affirm, holding the property description in the contract at issue does not

satisfy the statute of frauds.

Keeling and McCaskill are neighbors with adjoining property on Posey Road in

Sparkman, Arkansas. McCaskill owns a mobile home and 4.75 acres along the Ouachita

River. Keeling initially expressed an interest in purchasing 3.5 acres from McCaskill. In

subsequent conversations, the parties discussed terms of Keeling’s purchasing more than just
the initial 3.5 five acres.1 On the basis of these discussions, Keeling drafted a handwritten

document that was signed by McCaskill:

Offer & Acceptance

I William Keeling agree to pay $10,000.00 for 3.5 acers of land East end of said
property.

Home and 1 acer $5,000

Total $15,000

Offer good for 60 days

William Keeling

Pd. 2,000.00
Bal. to be pd 300 a month

/s/ Linda M. McCaskill
2-21-2017

The next day, McCaskill rejected Keeling’s “offer” and attempted to return the $2,000 he

had given her. She also refused to accept the $300 when it became due.

Keeling filed a complaint for specific performance alleging that he offered to purchase

4.5 acres of land and a home from McCaskill for $15,000, that she accepted the offer, and

that she ultimately refused to perform under the contract. McCaskill answered and, among

other things, denied the existence of a contract and asserted a statute-of-frauds defense. The

parties proceeded to a bench trial where the court heard testimony and received evidence

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The parties presented highly contested and disputed details of their negotiations.
One of the details in dispute is whether Keeling granted McCaskill, in essence, a life estate
in the property. Keeling claims that he agreed to allow McCaskill to remain in her home
for as long as she desired. McCaskill denies that she even agreed to sell the property. For
purposes of this opinion, the disputed details are not entirely germane to the issue at hand.

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from Keeling; his wife, Madeline; and McCaskill. After considering all the evidence before

it, the circuit court found that the contract was unenforceable and denied Keeling’s request

for specific performance. Keeling appealed.

The court, here, denied Keeling’s request for specific performance. Specific

performance is an equitable remedy that compels performance of a contract on the precise

terms agreed upon by the parties or such a substantial performance as will do justice between

the parties under the circumstances. Dossey v. Hanover, Inc., 48 Ark. App. 108, 891 S.W.2d

67 (1995). Because it is an equitable remedy, courts are allowed some latitude in granting

or withholding that relief, depending on the equities of a particular case. Id.

After conducting a bench trial, the circuit court specifically found that the purported

contract at issue was missing several essential elements and was therefore not enforceable.

Our standard of review on appeal from a civil bench trial is “whether the circuit court’s

findings were clearly erroneous or clearly against a preponderance of the evidence.” Peregrine

Trading, LLC v. Rowe, 2018 Ark. App. 176, at 1, 546 S.W.3d 518, 520. A finding is clearly

erroneous when, although there is evidence to support it, the reviewing court, on the entire

evidence, is left with a firm conviction that a mistake has been committed. Id. at 1–2, 546

S.W.3d at 520. Facts in dispute and determinations of credibility are solely within the

province of the fact-finder. Id.

Having reviewed the contents of the purported contract in this case, we are not left

with a firm conviction that a mistake has been made.

Here, the court found that the contract at issue was missing two essential terms: a

proper description of the property and the provision of a life estate in McCaskill. Looking

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to the court’s determination that the description of the property in the purported contract

was not sufficient to satisfy the statute of frauds, we agree.

Our supreme court has held that a contract for the sale of land must comply with the

statute of frauds in order to be enforceable. Boensch v. Cornett, 267 Ark. 671, 590 S.W.2d

55 (Ark. App. 1979). Specifically, the contract must contain, either in itself or by reference

to another writing, all essential terms including (1) the terms and conditions of the sale, (2)

the price to be paid, (3) the time for payment, and (4) the land to be sold. Van Dyke v.

Glover, 326 Ark. 736, 934 S.W.2d 204 (1996). Pertaining to the essential element of the

land to be sold, the writing itself must furnish the “keys” to locating the property. See id.

Unless the essential terms of the sale can be ascertained from the writing itself, or by

reference in it to something else, the writing does not comply with the statute of frauds, and

parol evidence cannot supply the missing terms. Id.

Our appellate case law is clear that a sufficient description of the land to be sold is an

essential term of the contract for purposes of the statute of frauds. If a writing furnishes a

means by which the realty can be identified, it need not describe the property with the

particularity required for deeds. Boensch, 267 Ark. at 674, 590 S.W.2d at 57. If a conveyance,

however, does not describe the land with such particularity as to render identification

possible, the conveyance is nugatory, unless the deed contains a reference to another

instrument that does include a sufficient description. Sorrells v. Bailey Cattle Co., 268 Ark.

800, 595 S.W.2d 950 (Ark. App. 1980); see also James v. Medford, 256 Ark. 1002, 512 S.W.2d

545 (1974); Turrentine v. Thompson, 193 Ark. 253, 99 S.W.2d 585 (1936); Richardson v.

Stuberfield, 168 Ark. 713, 271 S.W. 345 (1925). Oral evidence may be resorted to only for

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the purpose of identifying the description contained in the writings but not for the purpose

of locating the land and supplying the description that the parties have omitted from the

writings. Creighton v. Huggins, 227 Ark. 1096, 303 S.W.2d 893 (1957); Moore v. Exelby, 170

Ark. 908, 281 S.W. 671 (1926); Richardson, 168 Ark. 713, 271 S.W. 345; Dev. & Constr.

Mgmt., Inc. v. N. Little Rock, 83 Ark. App. 165, 119 S.W.3d 77 (2003).

Here, McCaskill owns 4.75 acres of property that is divided into three separate tracts.

The court received into evidence a warranty deed describing the three separate tracts. One

parcel comprises approximately .25 acres; another comprises approximately 4 acres; and the

last parcel comprises approximately .5 acres. Despite this division of her property into three

separate parcels, the handwritten document between McCaskill and Keeling identifies only

two parcels of property: parcel one is described in the contract as “three and a half acers [sic]

of land East end of said property”; the second parcel is described as “Home and 1 acer [sic].”

By its own terms, the handwritten document purports to convey only 4.5 acres of the 4.75

acres owned by McCaskill. Moreover, the handwritten document did not describe the two

parcels of land purportedly conveyed consistent with any of descriptions designated in

McCaskill’s warranty deed.

Keeling argues that he received a copy of McCaskill’s warranty deed when the

“contract” was executed. Reading the two documents together, Keeling contends a

sufficient identity of the property to be purchased has been provided to satisfy the statute of

frauds. We disagree.

In Creighton, supra, our supreme court reversed a grant of specific performance where

the contract for sale of realty contained a description (a street number) that covered only

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part of a larger tract owned by the vendor and there were no visible lines or signs on the

ground to identify division, and a determination of what part of the larger tract was intended

to be included could not be made without resorting to parol evidence.

In Routen v. Walthour-Flake Co., 221 Ark. 354, 253 S.W.2d 208 (1952), the land to

be sold was described in the contract as “16 acres—67 Highway East at Fairfax Crossing.”

The appellant brought suit for specific performance of the contract, and the circuit court

dismissed the complaint. On appeal, the appellant contended that oral testimony should be

permitted for the purpose of locating and identifying the land. The supreme court disagreed

and affirmed. It should be noted that in its Routen opinion, the supreme court also

disapproved of certain language in Moore, supra, which appeared to allow extrinsic evidence

that the parties definitely understood the property to be conveyed to satisfy the requirement

that the land be described.

We hold that Creighton and Routen are applicable to the “contract” at issue. The

handwritten document between these parties does not provide any identifying information

about the property. It does not refer to the state, county, township, section, or range where

the property is located. It fails to even refer to a particular town where these parcels are

located. It does not sufficiently describe which of the 4.75 acres is included in the 3.5 acres

identified in the contract nor does it provide a key by which to definitely determine the

location of the home and its one acre. Simply stated, the purported contract at issue does

not adequately identify the property to be sold. As such, it is missing an essential element

necessary to render it enforceable under the statute of frauds.

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Furthermore, we are not persuaded by Keeling’s argument that the handwritten

document and McCaskill’s warranty deed are sufficient to satisfy the statute of frauds. The

warranty deed was not executed or created at the same time as the handwritten document

at issue2 and is not referenced within the handwritten document in any way.

Accordingly, the circuit court was correct in determining that Keeling was not

entitled to specific performance. Because the court was correct in finding that the contract

was unenforceable because it lacked a sufficient description of the property to be sold, we

need not address whether McCaskill’s life estate was an essential element of the contract

necessitating its inclusion in the contract.

Affirmed.

HARRISON and SWITZER, JJ., agree.

Ashcraft & Associates, by: Cecilia Ashcraft, for appellant.

Taylor & Taylor Law Firm, P.A., by: Andrew M. Taylor, Tasha C. Taylor, and Tory H.

Lewis, for appellee.

2
Generally, instruments executed at the same time by the same parties, for the same
purpose, and in the course of the same transaction, are, in the eyes of the law, one instrument
and will be read and construed together. Graves v. Graves, 7 Ark. App. 202, 646 S.W.2d 26
(1983).

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