The opinion
HaymoND, Judge,
dissenting:
As I am thoroughly convinced from the record in its entirety in this case that the defendants, Rhodie Pauley and George H. Pauley, her husband, have no valid defense to the claim of the plaintiff to specific performance of the written contract of sale executed by the defendant Rhodie Pauley of the four tracts aggregating sixty eight and one half acres, more or less, of land owned by her, I dissent from the decision of the majority which reverses the decree of the circuit court granting specific performance and relieves her of the obligation fairly imposed upon her by the contract of sale.
The defendant George H. Pauley, who did not sign the contract, filed a demurrer to the original bill of complaint and the amended bill of complaint. His demurrer to each of these pleadings was overruled. He did not file an answer and, as he was duly served with process, the material allegations of each bill of complaint were taken for confessed as to him.
The defendant Rhodie Pauley filed an answer to the original bill of complaint in which she admitted that she had executed an option which granted the plaintiff the exclusive right to purchase the real estate described in the bill of complaint but in which she denied that the *33 plaintiff had elected to extend the option within the first extension period of two months provided by the option and denied that the plaintiff had accepted the option in the manner provided by its terms. The alleged failure of the plaintiff to elect to extend and to accept the option was the sole ground of defense presented by her answer.
The case was heard and submitted for decision upon the original bill of complaint, the amended bill of complaint, the answer of the defendant Rhodie Pauley, the replication of the plaintiff, the evidence introduced by the plaintiff, in the form of depositions, that he had elected to extend the option and had accepted it within the time and in the maimer provided by its terms, and the evidence introduced by the defendants, also in the form of depositions, that the plaintiff had failed to comply with its terms in that respect. The only controverted questions of fact presented by the foregoing pleadings or dealt with in the evidence related to the election to extend the option and its acceptance by the plaintiff. The defendants admitted that the defendant Rhodie Pauley was the owner of the real estate and that there were two houses and a barn on the land; and the defendant Rhodie Pauley, in her testimony, stated that the defendants had previously lived in one of the houses and she referred to the property as a farm on Davis Creek. Neither the answer nor the evidence offered by the defendants challenges or assails the validity of the option, which if duly extended and accepted became a contract of sale and purchase, because of insufficient description or inadequate identification of the land or the application of the statute of frauds. Upon the hearing the defendants relied upon the sole defense that the option had not been extended and accepted within the time and in the manner required by its terms.
On September 30, 1952, the court decided the issues presented and upon conflicting evidence relating to those factual matters found in favor of the plaintiff and directed, by a written memorandum filed of record, the entry of a decree of specific performance awarding costs against the defendants which decree, however, was not actually *34 entered until December 1, 1952: The record discloses that on the same day, but after the entry of the final decree, the defendants tendered a plea of the statute of frauds, a petition for permission to amend the answer of the defendant Rhodie Pauley, and a petition to rehear the case. The plea and the petition to rehear were filed by permission of the court. A demurrer to the plea was sustained and the relief sought by the petitions was denied. Separate decrees were successively entered of record with respect to the plea and each petition and, contrary to the statement in the majority opinion that the action taken in connection with the plea and the petitions occurred “apparently before the actual entry” of the final decree, each of the separate decrees was entered of record after the entry of the final decree. The circuit court, being a court of record, speaks only by its record, and that which does not appear from such record does not exist in law. State ex rel. Bika v. Ashworth, 128 W. Va. 1 , 35 S. E. 2d 351 ; Meyers v. Washington Heights Land Company, 107 W. Va. 632 , 149 S. E. 819 ; Charleston Trust Company v. Todd, 101 W. Va. 31 , 131 S. E. 638 .
Under the well established rule that the findings of a trial chancellor based on conflicting evidence will not be disturbed on appeal unless clearly wrong or against the preponderance of the evidence, the decree entered by the circuit court is conclusive upon the question of the extension of the option and its acceptance by the plaintiff. Mann v. Peck, 139 W. Va. 487 , 80 S. E. 2d 518 ; Gaymont Fuel Company v. Price, 138 W. Va. 930 , 79 S. E. 2d 96 ; Rohrbaugh v. Rohrbaugh, 136 W. Va. 708 , 68 S. E. 2d 361 ; Acker v. Martin, 136 W. Va. 503 , 68 S. E. 2d 721 ; Holt Motors v. Casto, 136 W. Va. 284 , 67 S. E. 2d 432 ; Adams v. Ferrell, 135 W. Va. 463 , 63 S. E. 2d 840 ; Bennett v. Neff, 130 W. Va. 121 , 42 S. E. 2d 793 ; Hardin v. Collins, 125 W. Va. 81 , 23 S. E. 2d 916 ; Shipper v. Downey, 119 W. Va. 591 , 197 S. E. 355 ; Spradling v. Spradling, 118 W. Va. 308 , 190 S. E. 537 ; Tynes v. Shore, 117 W. Va. 355 , 185 S. E. 845 ; Kincaid v. Evans, 106 W. Va. 605 , 146 S. E. 620 ; Ramsey v. *35 England, 85 W. Va. 101 , 101 S. E. 73 ; Bailey v. Calfee, 49 W. Va. 630 , 39 S. E. 642 .
Notwithstanding the unwarranted delay in the filing of the plea of the statute of frauds until after the case had been heard and determined and a final decree entered which granted the relief prayed for by the plaintiff, the majority bases its decision to reverse the decree and dismiss this suit on the highly technical and legally erroneous ground that the description of the land, aggregating sixty eight and one half acres, more or less, comprising four separate tracts of thirty three and one half acres, ten acres, more or less, ten acres, more or less, and fifteen acres, more or less, the identity of which, by the undisputed evidence, was well known to all the parties to the option, was insufficient and that, for that reason, the contract of sale does not satisfy the certainty requirement of the statute of frauds and may not be enforced. It is perfectly obvious that there is only one tract aggregating sixty eight and one half acres of land, more or less, made up of four separate parcels of designated acreages, on Middle Fork of Davis Creek, in Kan-awha County, West Virginia. There is no contention by any party to the contract that any of them could not, from the description used in the contract, identify or locate the land or did not know where to find it. The description of the tract, the component parcels of which obviously aggregate sixty eight and one half acres, more or less, the express statement of the individual acreage of each of the four parcels comprising the entire tract, and the designation of its location on Middle Fork of Davis Creek, give clearly recognizable individuality to the entire tract and constitute a sufficient guide or key to enable any person of ordinary intelligence and experience in such matters to identify and locate the land mentioned in the contract.
In each of the cases of White v. Core, 20 W. Va. 272 ; Ferrell v. Camden, 49 W. Va. 225 , 38 S. E. 581 ; Holley’s Executor v. Curry, 58 W. Va. 70 , 51 S. E. 135 , 112 A. S. R. 944; Crotty v. Effler, 60 W. Va. 258 , 54 S. E. 345 ; Kight v. *36 Kight, 64 W. Va. 519 , 63 S. E. 335 ; Day v. Kramer, 87 W. Va. 777 , 106 S. E. 128 and Sponaugle v. Warner, 98 W. Va. 532 , 127 S. E. 403 , cited in the majority opinion, the description of the land involved was held to be sufficient, and, in my opinion, the description, in each instance, is no more certain or definite or the land is no more capable of identification by extrinsic evidence than the description and the means of identification contained in the present contract of sale. It mentions four separate parcels which comprise the entire tract, designates the acreage of each, and expressly locates the tract on Middle Fork of Davis Creek. The terms of the contract necessarily imply that the land is owned by the defendant Rhodie Pauley.
Though the rule as stated in 37 C. J. S., Frauds, Statute of, Section 184, and as applied in the above cited cases in the majority opinion, is that “One. of the essential elements of a contract for the sale or conveyance of real property which must be stated in the contract, or a memorandum or note thereof, is a description of the property to be conveyed. The land must be so described that it can be identified with reasonable certainty. The writing must disclose a description which is itself definite and certain or it must furnish the means or key by which the description may be made certain and identified with its location on the ground. In other words the contract, note, or memorandum is insufficient where parol evidence is necessary to supply the description, or part thereof, to determine and define the subject matter, and to show the intention and agreement of the parties as to the subject matter; and it is sufficient as regards subject matter where it furnishes a sufficient foundation for the admission of extrinsic evidence to apply the description and by means of such evidence the particular tract of land which is the subject matter of the agreement may be identified and located to the exclusion of all others * * the description contained in the instant contract of sale fully satisfies the requirement of the above quoted rule. By expressly-designating the acreage of each of the four separate parcels which together aggregate sixty eight and one *37 half acres, more or less, and constitute the entire tract apd the definite location of the land on a single named stream and by necessarily implying that the defendant Rhodie Pauley is its owner, the description in the contract furnishes the “means or key by which the description may be made certain” and by which the land “may be identified and located to the exclusion of all” other tracts of land, and supplies a “sufficient foundation for the admission of extrinsic evidence” to identify and locate it. It is evident that there is no other tract of land of the obvious aggregate of sixty eight and one half acres, more or less, on Middle Fork of Davis Creek which is made up of four separate parcels of the designated acreage of each and it can not be said, with any degree of reason, that the description of the land set forth in the contract of sale is too vague or uncertain, or that the land can not be readily identified and located, or that either party to the contract of sale entertained any doubt whatever as to the identification and the location of the land.
In Bolton v. Harman, 98 W. Va. 518 , 128 S. E. 101 , the description- of land in a deed as “A tract of 400 acres situate on Mountain Fork of Big Creek in McDowell County, West Virginia, and being a portion of an original tract of 1600 acres patented to J. C. Harrison by the State of Virginia, and being the same tract of land which adjoins Geo. L. Carter and others and is now leased to the said G. L. Carter by the parties of the first part under a coal lease, this deed being subject to the provisions of said coal lease.”, was held to be sufficient; and in Davis Colliery Company v. Westfall, 78 W. Va. 735 , 90 S. E. 328 , the description of land in a conveyance as “One tract of seven hundred acres in the district of Middle Fork in this County on the waters of the Middle Fork River near the town of West Huttonsville, being a part of a tract of one thousand acres devised to the said Alfred Hutton by his father, Moses Hutton.” was likewise held to be sufficient. The tracts of 400 acres and 700 acres in the foregoing descriptions are merely undefined portions of larger tracts and the only recital or reference in the description *38 in the Davis Colliery Company case relates to the 1000 acre tract of' which the 700 acre tract is a part. The description of the 400 acres and of the 700 acres, in each instance, is not more certain, but is obviously less certain, than the description of the tract of land, composed of four separate parcels of designated acreages, in the contract of sale; and the holdings in the Bolton case and in the Davis Colliery Company case, on this point, clearly sustain the legal sufficiency of the description of the land in the contract of sale.
It is significant that no case has been cited by counsel, or discussed in the majority opinion, or has been found by a painstaking search of the authorities by me, which holds that a description of a tract of land, which expressly mentions its separate component parcels by designated acreages, the aggregate of which is obvious, and specifies a definite location of the land, is legally insufficient and unenforceable under the statute of frauds.
In Webb v. Ritter, 60 W. Va. 193 , 54 S. E. 484 , this Court held that a deed, which described the land mentioned in it as: “All that certain tract or parcel of land situate in McDowell county, West Virginia, on Rings Branch, Peggy’s Fork and Laurel Creek, all tributaries, of the Dry Fork and Tug River, supposed by estimation to contain one hundred acres be and the same more or less,” was void for uncertainty of the description. In Crawford v. Workman, 64 W. Va. 10 , 61 S. E. 319 , cited and strongly relied on in the majority opinion, specific performance of a contract for the sale of land was denied by this Court which reversed a decree of the Circuit Court of Boone County granting specific performance of the contract. In that case the contract described the land as a tract “containing 600 acres, more or less, situate in Crook district, Boone county, West Virginia, described as follows, to-wit: On the West Fork of Little Coal River, and James Creek of said West Fork”. Though this Court held that the foregoing description rendered the contract of sale void for uncertainty and constituted a sufficient ground for *39 refusing specific performance of the contract it denied specific performance on the additional ground that the plaintiffs had delayed the institution of their suit for a period of five years during which the real estate involved had vastly increased in value. The remedy of specific performance is not a matter of absolute right but rests in the sound, but reviewable, discretion of the court. Abbott v. L’Hommedieu, 10 W. Va. 677 ; West Virginia Oil and Oil Land Company v. Vinal, 14 W. Va. 637 ; Johnson v. Ohio River Railroad Company, 61 W. Va. 141 , 56 S. E. 200 ; Reger v. McAllister, 70 W. Va. 52 , 73 S. E. 48 ; Kennedy v. Burns, 84 W. Va. 701 , 101 S. E. 156 ; Rollyson v. Bourn, 85 W. Va. 15 , 100 S. E. 682 ; Collins v. Thomas, 87 W. Va. 597 , 105 S. E. 897 ; Morris v. Harrop, 154 Va. 127 , 152 S. E. 343 ; Walker v. Henderson, 151 Va. 913 , 145 S. E. 311 ; Beckett v. Kornegay, 150 Va. 636 , 143 S. E. 296 ; and this Court recognized that principle in the Crawford case.
In the following cases these descriptions were held to be legally insufficient and the contract, written or verbal, embodying such description, void for uncertainty: “a tract of land * * * situated on the south side of the South Fork near Owen Talkington”, Ensminger v. Peterson, 53 W. Va. 324 , 44 S. E. 218 ; “a certain piece of land being the lower end of a certain survey conveyed to him by said Williams, adjoining the lands of Cheat Hamman and old man Jimmy Robins, in the district of Falling Spring, in the county of Greenbrier and State of W. Va., containing 67% acres”, Blankenship v. Spencer, 31 W. Va. 510 , 7 S. E. 433 ; “forty acres off the Spring Pork end of my tract of one hundred and forty-seven acres on Beech Fork in Calhoun county”, Westfall v. Cottrills, 24 W. Va. 763 ; and “ten acres of land on the west side of the branch on the Keeny place (where Mathews now resides) ”, Mathews v. Jarrett, 20 W. Va. 415 . The descriptions considered in the Webb, Crawford, Ensminger, Blankenship, Westfall, and Mathews cases are materially different from the description in the. contract here under consideration which, as already pointed out, designates four tracts of specified acreages as components of a tract aggregating *40 sixty eight and one half acres, and definitely locates and identifies it, and the holdings in those cases do not apply to or control the description in this case or render the contract of sale void for uncertainty and unenforceable.
This Court has frequently held that the main object of a description of land sold or conveyed in a contract of sale or a deed is not in and of itself to identify the land, which it seldom does or can do without the aid of extrinsic evidence, but such object is to furnish the means of identification; that if the description does this it is sufficient; and that, in a description, that is certain which can be made certain. Thorn v. Phares, 35 W. Va. 771 , 14 S. E. 399 ; Simpkins v. White, 43 W. Va. 125 , 27 S. E. 361 ; Foley v. Ruley, 43 W. Va. 513 , 27 S. E. 268 ; Holley’s Executor v. Curry, 58 W. Va. 70 , 51 S. E. 135 , 112 A. S. R. 944; Smith v. Owens, 63 W. Va. 60 , 59 S. E. 762 ; Jones v. Gibson, 118 W. Va. 66 , 188 S. E. 773 .
It is also well established by the decisions of this Court that great liberality is allowed with reference to a description of property and that a deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, the property intended to be conveyed. Holley’s Executor v. Curry, 58 W. Va. 70 , 51 S. E. 135 , 112 A. S. R. 944; Jones v. Gibson, 118 W. Va. 66 , 188 S. E. 773 . The majority opinion, quoting from Simpkins v. White, 43 W. Va. 125 , 27 S. E. 361 , recognizes the rule that a deed will not be declared void for uncertainty if it is possible, by any reasonable rules of construction, to ascertain from the description, aided by extrinsic evidence, the property intended to be conveyed, but the same opinion refuses to give-that rule force or effect or to apply it to the present contract of sale. The defendants, in their testimony, admit the ownership of the land by the defendant Rhodie Pauley; and the description, by designating the acreage of the component parcels and locating the tract on Middle Fork of Davis Creek, furnishes the means of identifying it to the exclusion of all other lands. Under the foregoing rule these undisputed facts make *41 certain the description and render it legally sufficient. Instead of applying the rule of liberal construction to the description, the majority adopts a contrary rule of strict and narrow construction the application of which will render void for uncertainty of description countless existing instruments of title to land which have heretofore been regarded as valid beyond all question of doubt. This feature of this case is a matter of grave concern and is the impelling reason for this dissent.
If, however, the description of the land in the contract of sale could reasonably be considered legally insufficient and, for that reason, the contract held void for uncertainty and unenforceable under the statute of frauds, the defendants have completely waived the defense of that statute. The defendant Rhodie Pauley, in her answer, expressly admits that she granted the plaintiff the exclusive right to purchase the real estate described in the option, which the proof offered by the plaintiff showed and the court found was duly extended and accepted, and in the answer she did not plead, mention, or rely upon the statute of frauds as a defense. The defendant George H. Pauley filed no answer to the bills of complaint which, for that reason, were taken as confessed as to him. The case was heard and submitted for decision and decided upon the issues raised by the bills of complaint and the answer of the defendant Rhodie Pauley. By the foregoing acts and omissions of the defendants they waived the defense of the statute of frauds and, having waived that defense in that manner, they could not overcome the effect of the waiver by filing the plea of the statute of frauds after the case had been finally decided on its merits and the final decree granting the relief prayed for by the plaintiff had been entered of record. There was no showing of good cause by the defendants which would justify the trial court in setting aside .or modifying that decree and its action in permitting the plea to be filed and in sustaining the demurrer to the plea after the final decree had been entered was erroneous, Baker v. Gaskins, 128 W. Va. 427 , 36 S. E. 2d 893 ; Post v. Carr, 42 W. Va. *42 72 , 24 S. E. 583 ; and such action did not operate to overcome the waiver by the defendants of the defense of the statute of frauds by their failure to invoke that defense before the entry of the final decree.
This Court has repeatedly held, in an unbroken line of decisions, that when an answer admits an agreement for the sale or purchase of land as alleged in the bill of complaint the defendant must plead the statute of frauds or the answer must claim the benefit of the statute and that by failing to plead the statute or to claim its benefit in the answer the defendant admits the agreement and renounces the benefit of the statute. Fleming, Admr. v. Holt, 12 W. Va. 143 ; Barrett v. McAllister, 33 W. Va. 738 , 11 S. E. 220 ; Cunningham v. Cunningham, 46 W. Va. 1 , 32 S. E. 998 ; Campbell v. O’Neill, 69 W. Va. 459 , 72 S. E. 732 ; Blagg v. Van Sickle, 90 W. Va. 351 , 110 S. E. 816 . In the opinion in Fleming, Admr. v. Holt, 12 W. Va. 143 , this Court used this pertinent language: “Where an answer admits an agreement for the sale or purchase of lands, though but a parol one, the defendant must plead this statute, or the answer must claim the benefit of this statute, in order that the defendant may avail himself of it; otherwise he is taken to have admitted an agreement, which is either good under the statute, or on some other ground is binding on him. See Spurrier v. Fitzgerald, 6 Ves. 548; Harris v. Kinckerbocker, 5 Wend. 638 ; Talbot v. Bowen, 1 A. K. Mar. 325; and it is immaterial whether the admission be directly by the answer, or by permitting the bill to be taken for confessed, or by failure to deny the agreement alleged in the bill, which under our statute is then taken to be true; Newton v. Swanzey, 8 N. H. 9.”
As the contract of sale is not void for uncertainty or unenforceable under the statute of frauds and as the benefit of that statute has been fully waived by the defendants, I would affirm the final decree of the Circuit Court of Kanawha County which granted the plaintiff the relief for which he prayed.
I am authorized to say that Judge Browning concurs in the views expressed in this dissent.