52 Miss. 596 | Miss. | 1876
Lead Opinion
delivered the opinion of the court.
The single question presented by the record is whether the deed offered in evidence by the plaintiff was admissible.
The objection taken to it was that it was void for uncer tainty in the description of the property.
■ The premises are as follows : “ R. J. Boss, tax collector of Madison county, has this day sold the following lands, to wit, lot and residence in Madison Station, for the taxes assessed to the reputed owner thereof, Thomas McMahon, for the year 1871.”
The officer, in making the sale, was acting in virtue of statutory power. Iiis- proceeding was in invitum. The words ‘ ‘ for the taxes assessed,” etc., are used rather to state the reason and authority for the act than as descriptive of the thing sold.
Every conveyance of land must define its identity or fix its locality. That may be done in two modes. The first is by so complete a description in the deed itself as points directly-to the subject-matter; or, second, by referring to something aliunde the deed, which, when consulted, indicates the property. If the contract is void by reason of the subject-matter, parol evidence is not admissible to supply the omission. Wilkinson v. Davis, adm’r, Freem. Ch., 58. In a sense it is
This is well illustrated by the case of Swazie v. McCrossin, 13 S. & M., 320. The description was “412 acres of all of ;a certain tract purchased by Bernard McCrossin from the United States, containing 1,020 arpents,” then giving the boundaries by abuttals on lands of adjacent proprietors. This deed was held void for'the patent ambiguity, because it was impossible from the face of the deed to know upon what part of the whole tract the 412 acres should be located, nor was any extraneous fact referred to, by aid of which the ambiguity could be removed.
But the deed may refer to some other document or fact which, when looked -to, will supply ample certainty of description. Of many such cases we refer to the following : ‘ ‘All that farm * * * in Washington on which the grantor then lived, containing 100 acres, with his dwelling house and barn thereon.” Worthington v. Hyler, 4 Mass., 196. “ A certain tract called Beaver Dam.” Hatch v. Hatch, 2 Hayw., 52. “ The home farm on which the grantor lives.” Doolitte v. Bleakly, 4 Day, 265. “An estate purchased of A, or a farm occupied by B.” 1 Merivale, 653. See, also, Tallman v. Franklin, 14 N. Y., 589 ; 1 Phillips (N. C.), 466. In each of these cases the grantor •directed attention to some outside fact, as the name of the farm, •or some other deed, or the occupancy of himself or some other person, inquiry into which would identify the premises sold.
Let us take this principle and apply it to the tax collector’s •deed. First, does the deed locate the premises ? If it does not, is reference made to something extrinsic by which the ’identity can be ascertained?
The premises purported to be conveyed are “lot and residence in Madison Station.” We have no information of the square, or number, or size. The words may fit twenty or
The words are wholly indefinite. They do not point to the lot and residence of Thomas McMahon, or of any other person, or promises occupied by him. There may be many residences in Madison Station. The descriptive words do not single out which one was meant. In this respect it is like Holmes v. Evans, 48 Miss., 250. There the description was “ a piece of' property on the corner of Main and Pearl streets, Natchez.” The description equally applied to four pieces of property, but-the writing pointed to no fact aliunde from which it could be determined which of the four was intended to be sold. If it-had been competent to go into the inquiry, as an independent fact, of what property the vendor intended to sell, it doubtless, would have been easy of proof; but it is not admissible by direct evidence to prove the intention, but it is admissible by such testimony to apply the terms of the deed. McGuire v. Stephens, 42 Miss., 751.
If it were competent to go into the question of intention,, no matter how barren the deed might be of description of the thing sold, in perhaps every conventional sale it could be. proved what particular property the parties meant.
After the deed had been rejected the plaintiff read in evi--dence the assessment roll, and then reoffered the deed, which was again excluded. But this document showed nothing more-than “ lot and residence” assessed to Thomas McMahon, but. how located does not appear.
Testimony was then offered that he owned the lot and residence described in the declaration, and no other. This was also-ruled out. The offer was not to apply the words used in the-deed to particular premises, and thereby identify them, but to introduce new and independent circumstances, and thus-prove that the property sold was the same sued for. The deed of a tax collector who sells in invitum, by virtue of power conferred by law, must- in itself be sufficient to convey the-thing sold.
But where parties negotiate a sale of. property each has-definitely in view the particular property. If, from vague and indefinite description, the deed should be inoperative, there is.a. clear right to have it so remodeled as to make it an effectual assurance. So that in no case of merit could wrong be done, if parties pursue their remedies.
We concur with the circuit court in its rulings, remarking that the question is not altogether free of embarrassment and difficulty. ■
Judgment affirmed.
Note. — The foregoing opinion was read, on the first consideration of the case,, as the judgment of the court. I adopt it on the reconsideration as my separate-opinion. — Simrall.
Concurrence Opinion
I concur in both the reasoning and judgment announced by my associates in this case, and am led to add a few words of my own by reason of the unusually careful consideration which we have all bestowed upon it, and because the-language of the conveyance in question presents, in a shape somewhat difficult, a question always more or less troublesome.
It is easy to say that an ambiguity which is apparent upon the face of an instrument cannot be explained by extrinsic testimony, while one that arises by reason of intrinsic facts may,, by proof of further extrinsic facts, be removed, and yet no rule has been found more difficult of application. I cannot but think that much of the difficulty has grown out of a struggle-by the courts to rid themselves of the fetters of the rule in cases where justice in the particular case seemed to require it. Certainly many of the adjudged cases work a practical abolition of the prohibition against the reception of extrinsic testimony' in cases of patent ambiguity. Whether an ambiguity is patent-
In the determination of this primary and fundamental question the court can neither know", nor inquire into, the situation -or. intention of the parties. ' It must confine itself to the •document itself, or to such other documents and circumstances ■as are referred to by it. Thus, a deed to “ a lot” or to “ the lot ” is void, but a deed to a lot set forth in some other paper •or proceeding referred to, or located in a cleaidy defined manner, ■or designated by name or number, Is good. So also a conveyance of “ my residence” is good, because the fact of ownership and possession is referred to by the use of the possessive pronoun, and the property is thus made susceptible of identification. If it should turn out that I owned more than one residence, then, inasmuch as the uncertainty thereby produced would spring from this extrinsic fact, other extrinsic facts may 'be adduced to show which residence is intended. But if there be a manifest uncertainty in the instrument, and no fact or •proceeding or other instrument is referred to, the conveyance 'is necessarily void.
The result is the same where such reference is made if an •application to the circumstances or document referred to still leaves the matter uncertain, because the inquiry must cease with the thing referred to unless it in turn refers to something •else.
The question, therefore, of what was the intention or the situation of the parties or of the property can never be inquired into if a perusal of the document in question, and a reference to all the other documents or circumstances referred "to by it, ieaves a palpable uncertainty as to what has been con'veyed.
Let us apply this rule to the conveyance in question. The -only words in it which can properly be considered as descriptive of the thing conveyed are, “lot and residence in Madison •Station.” Manifestly these words are void for uncertainty.
delivered the opinion of the court.
The language of the deed offered as evidence, and excluded, is . this, viz : “ I, R. J. Ross, tax collector of Madison county, have this day, according to law, sold the following lands, there being • no other property on which to levy and make the taxes due on said lands, to wit, lot and residence in Madison Station, for the taxes assessed to the reputed owner thereof, Thomas McMahon, for the year 1871,” etc. The question is whether that. deed presents a patent ambiguity as to the description of the thing sold, and is therefore void. The question is not. whether parol evidence will remove all doubt or uncertainty
The declaration of Lord BacoN, that a “■patent ambiguity is never holpenby avermeut,” has been often qualified and much ■restricted in modern times, it is true, but none will deny that when the mere perusal of this instrument shows plainly that some- ■ thing more must he added before the reader can determine which of several things is meant by it, the rule is inflexible that no evidence can be admitted to supply the deficiency.
Whenever extrinsic evidence is admissible a court will not stop until all means of ascertaining the meaning and application of the instrument are exhausted ; but when the ambiguity is patent within the definition above given, extrinsic evidence cannot help it, and although it may in such case be possible by such evidence to show to a moral certainty what the maker of the instrument, as matter of fact, had intended, rather than what he had expressed, the evidence is not admissible except in a proceeding in chancery to reform the instrument for mistake.
Extrinsic evidence is admissible to show to which of several subjects a description applicable to each was intended to apply, but not to bring a particular thing under a description not applicable to it.
The characteristic of all the cases in which parol evidence is declared admissible to apply written instruments is that the words of the instrument do describe the object or subject intended, and the evidence only enables the court to reject one of the objects or subjects to which the description applies, and 'to determine which the maker intended.
The law applicable to the case under consideration is well settled, but the difficulty is in the application of it. Is the ■deed ambiguous on its face? The oilly descriptive words in it of the thing conveyed are “lot and residence in Madison ■Station.” The words “ for the taxes assessed to the reputed owner thereof, Thomas McMahon, for the year 1871,” are not descriptive of the thing sold, but expressive of the reason for the sale. If the words used were “lot and residence of 'Thomas McMahon in Madison Station,” or equivalent words, no doubt would be entertained of the admissibility of evidence to apply the deed, by showing which was the lot and residence in Madison Station of Thomas McMahon, for then the deed would refer to extrinsic facts which could be resorted to to •complete the description of the thing sold. We have carefully ■examined all the authorities cited by counsel for plaintiff in error, and many others, and, although fully imbued with the spirit of the maxims ut res magis valeat quam per eat, and cerium est quod cerium reddi potest, cannot resist the conviction announced on the first consideration of this case, that the deed presents ambiguitcis patens, and was properly excluded from the evidence.