Buchanan v. Larkin

116 Ala. 431 | Ala. | 1896

HARALSON, J.

The original complaint was void for uncertainty of description of the land sued for, and the court so held on demurrer thereto.

The amended complaint was filed for no. other purpose than|to|correct the description of the land as given in the original complaint. If plaintiff sues for Black Acre, and by mistake describes White Acre, he may amend his complaint so as to correct the mistaken description. He can not sue for the one and add the other by amendment. — Mahan v. Smitherman, 71 Ala. 567; Springfield F. & M. Ins. Co. v. DeJarnett, 111 Ala. 248.

The complaint as amended was demurred to as a whole because a part of the land, viz., “part of the S. W. £ of N. W. £ and fraction in N. W. £ of N. E. £ of section 4, 10 acres.,” etc., was indefinite and void for uncertainty. It must be acknowledged, that this description indicates with definiteness no particular parcels of land ; but there were other lands certainly described in the complaint, and which may be identified from the description therein. The demurrer being to the whole complaint, unobjectionable in its description of some of the lands sued for, but uncertain as to others, was properly overruled. — L. & N. R. R. Co. v. Hall, 91 Ala. 118; Flournoy v. Lyon, 70 Ala. 308; Tatum v. Tatum, 81 Ala. 388.

The mortgage under which the plaintiff claimed to derive title, contained the same indefinite description which was employed in the original complaint. If the plaintiff were claiming a right of recovery alone under this mortgage, the description of the land therein being void for uncertainty, and containing no data by which it could be made certain, the mortgage would not be competent evidence as a muniment of title. — Griffin v. Hall, 111 Ala. 601; Griffin v. Hall & Farley, 115 Ala. 482. But, the plaintiff did not rely on.this mortgage alone for recovery. Its introduction in connection with other evidence, may be regarded as merely inducement for such other evidence, on which plaintiff predicated his right of recovery, and was admissible for that purpose. It was shown, for instance, that at the time the defendant executed the mortgage, he lived on the lands sued for, and owned no others in the county. This was objected to as illegal and irrelevant evidence, but the objection was groundless. — DeJarnette v. McDaniel, 93 Ala. 219. It was furthermore shown, without conflict, that the plaintiff, who had paid for and owned the mortgage, foreclosed it and at the sale became the purchaser. After this purchase, plaintiff went into the possession of the lands sued for in 1892, and rented them to the defendant for that year, who attorned to him as his landlord and paid the rents to him as such. The defendant could not, thereafter, dispute plaintiff’s title, howsoever acquired.

There was no error in giving The affirmative charge for plaintiff.

Affirmed.