Bromberg v. Smee

130 Ala. 601 | Ala. | 1900

TYSON, J.

The plaintiff and defendant each claim title to the land in controversy under deeds executed by Oassibry; the former under a deed executed to him in 1900, and the latter under a deed to Gourmond, her adopted father, made in 1800. Doubtless for the purpose of avoiding the effect of defendant’s possession upon the conveyance under which plaintiff claims title, the third count of the complaint was added, by way of amendment, predicated upon a demise by Oassibry in October, 1872.

The decisive point in the case, is involved in the question whether the deed of Oassibry to Gourmond is void for uncertainty of description. If not void, on this account, Oassibry effectually parted with all his title to Gourmond, and, therefore, conveyed nothing by his deed to plaintiff. And not having title, plaintiff could not recover on the demise laid in him. And this is true, notwithstanding the defendant must have parted with her title to another. For the plaintiff must recover upon the strength of his own title and not upon the weakness of his adversary’s. If his title is not sufficient to support the action, or the defendant, not standing in a relation which estops her from denying his title, shows a superior outstanding title in Gourmond, or her vendee, the action is defeated. — 3 Brick. Dig., 325, S 38. 'The description in the deed of 'Oassibry to Gourmond is in this language: “All that certain piece and parcel of land lying and being in the county of Mobile, and State of Alabama, in township No. 7, south of range number 3 west, and part of the southeast quarter of the northwest quarter of section number 26, in said township-and range, and containing thirty-nine acres and 33-‡ hundredths. The above piece or parcel of land includes the whole of the southeast quarter of the northwest quarter of section number 26 in said township, less 66:|; hundredths of an acre.”. It is clear to us that it was the intention of the grantor to convey all the land he owned in southeast quarter of the northwest quarter of section 26. It is true be failed in this respect, and actually parted with all except hun-dreths of an acre, as shown by the letters patent to him. The exception of 66f hundredths of an acre must have been inserted upon the theory that the subdivision contained 40 acres instead of 39 and 33J hundredths of an acre, or 39 and 33f- hundredths of an acre. However without regard to the grantor’s intention to convey the entire subdivision, if it be assumed that he intended and actually attempted to except the 66|- hundredths of an acre, the exception alone is void for uncertainty, and the grant is good.—Morris & Co. v. Giddens, 101 Ala. 571; Frank v. Myers, 97 Ala. 437.

The introduction in evidence of the receipt given to Cassibry by the receiver for the money paid by him was innocuous. Since’ with it in or out of the case, neither the plaintiff nor Cassibry has a title upon which a recovery can be had.

The affirmative charge was properly given for the defendant.

Affirmed.