Adams v. Wilson,

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Notebook

| Ala. | Nov 15, 1902

DOWDELL, J.-

The bill in this cause Avas filed by the appellant, Adams, against Loula Y. Herman and ffm. II. Wilson. Separate demurrers Avere filed by the respondents to the bill. The appeal is taken from the decree of the court sustaining the demurrer of the respondent Wilson.

The theory of the bill is, that there is an overlap in the description of two tracts of lands simultaneous!v conveyed by a common grantor, Ann Roebuck to her two daughters, Loula Y. Herman and Ann E. Adams, through AArhom appellant and appellee claim title; the former claiming under Ann E. Adams, and the latter under Loula Y. Herman. The bill avers that the respondents are in possession of the alleged overlap, and the relief prayed is’ for an apportionment of the overlap and adjustment accordingly of the boundaries of the* two tracts. The allegations of the bill sIioav that, there Avere two separate and distinct surveys of the tracts in question, and of necessity one must have been prior in point of time to the other. In fact, in. the description of the. tract conAreye.d to Ann E. Adams the prior survey of the land conveyed to- Loula V. Herman is referred to, and from the language used, it may he inferred, that the two surveys: AAr-ere made by different surveyors. The contention of appellee is, that there is no overlap, and Ave think on the facts shoAvn by the bill, tliis contention is sound. The equitable doctrine of apportionment, as applied to overlapping land in certain cases, cannot be invoked in every instance where grants from a common grantor encroach, one upon the other. We1 think the doctrine is correctly stated in 5 Oyc. of Law & Procedure, page 973, Avhere it is said: “Where a tract of land is subdivided and is subsequently found to contain either more or less than the aggregate amount called for in the survevs of the tracts within it, the proper course is to apnortion the excess or deficiency among the several tracts. If, hoAvever, the oilginal tract is subdivided by distinct and separate syirveys the «eoond survey is subservient to the first, and must hear any subsequent dis*635covered, deficiency. So, too, where a tract is conveyed in parcels without reference to any plan- or the avowal of a purpose to divide land according to any definite proportion, any excess or deficiency will go to, or be borne by, the last grantee; and if a tract is divided into a certain number of lots of a uniform size, and an irregular surplus is also divided into two or more lots, any deficiency will fall upon the latter lots.” See also authorities cited in marginal notesi to above text. The case in hand does not come within the class mentioned in the first clause of the above quotation, and consequently the principle declared is with out application But on the facts alleged in the bill, it does come within the doctrine asserted in the second clause. Here, there is a division by separate and distinct surveys, and the second survey, which was the appellant’s land, is subservient to the first.

The cases cited by counsel for appellant — 23 Am. St. Rep. 389; 24 Am. St. Rep. 287; 45 Am. St. Rep. 183-are based on a state of facts different from what we have before use, and what is decided in those cases in' nowise conflicts with what we have, siaid above. The. first of the above cases, (23 Am. St. Rep. 389; s. c. 78 Wis. 27" court="Wis." date_filed="1890-11-05" href="https://app.midpage.ai/document/pereles-v-magoon-8183498?utm_source=webapp" opinion_id="8183498">78 Wis. 27), is cited as an authority in Cyc. of Law & Procedure, on the first proposition laid down in the quotation Ave have made from that work.

Since it is shown by the bill that the respondent Wilson claims under and through the respondent Herman, Ave do not think there is any merit in the ground of demurrer setting up multifariousness in the bill. “It is no objection that the different defendants have separate interests in distinct questions, provided they are all connected Avitli and come out of the single object of the suit, not, dividing 'the retmedy into two suits.” — Collins v. Stix, Kraus & Co., 96 Ala. 338" court="Ala." date_filed="1892-11-15" href="https://app.midpage.ai/document/collins-v-stix-kraus--co-6514809?utm_source=webapp" opinion_id="6514809">96 Ala. 338; Handley v. Heflin, 84 Ala. 600" court="Ala." date_filed="1887-12-15" href="https://app.midpage.ai/document/handley-v-heflin-6513169?utm_source=webapp" opinion_id="6513169">84 Ala. 600; Hinds v. Hinds, 80 Ala. 225" court="Ala." date_filed="1885-12-15" href="https://app.midpage.ai/document/hinds-v-hinds-6512496?utm_source=webapp" opinion_id="6512496">80 Ala. 225; Russell v. Garrett, 75 Ala. 348" court="Ala." date_filed="1883-12-15" href="https://app.midpage.ai/document/russell-v-garrett-6511873?utm_source=webapp" opinion_id="6511873">75 Ala. 348; Randle v. Boyd, 73 Ala. 282" court="Ala." date_filed="1882-12-15" href="https://app.midpage.ai/document/randle-v-boyd-6511622?utm_source=webapp" opinion_id="6511622">73 Ala. 282.

It is not stated upon wh-at ground in sustaining the demurrer the decree is rested, nor is this -important,, since if any one ground be well taken, the decree is suooorted.

For the reason given alxwe, the decree Avill be affirmed.