Caston v. McCord, 130 Ala. 318

Caston v. McCord

130 Ala. 318 | Ala. | 1900

Lead Opinion

SHARPE, J.

If it be judged alone by what appears on its face, tbe mortgage exhibited in the bill and sought *321to be foreclosed is as to real property void for uncertainty. That which is set out therein as a description of land, is “one and a third (1 1-3) acres of land lying south of W. T. McCord’s lot in Albertsville, Ala., in Sec. 15, T. 9, B. 4 east.” Standing 'alone this description fails to distinguish any particular land from other jands in the same locality, it gives no sufficient data where-from it could be located by a survey, and refers to no particular appellation, fact or circumstance, widely could ‘Serve for its identification. According to many” authorities such a defect would be classed as a patent ambiguity fatal to the conveyance. In this State it has been settled by decisions so numerous as to establish a rule of property, that mere indefiniteness in description though it be such as to render a deed prima facie inoperative does not necessarily have that effect; that evidence of extrinsic facts relative to the situation of the parties and the circumstances attending the conveyance may be looked to for the purpose of identifying its subject matter, and that it is only upon the failure of evidence to give certainty to the description that the instrument will be declared void.—Moody v. A. G. S. R. R. Co., 124 Ala. 195; Greene v. Dickson, 119 Ala. 346; Clement v. Draper, 108 Ala. 211; Webb v. Elyton Land Co., 105 Ala. 471; Homan v. Stewart, 103 Ala. 644; DeJarnette v. McDaniel, 93 Ala. 215; O’Neal v. Seixas, 85 Ala. 80; Meyer Bros. v. Mitchell, 75 Ala. 475; Chambers v. Ringstaff, 69 Ala. 140.

That the decree in case of foreclosure might be certain in respect of the property upon which it is to operate, it is proper for the bill to allege a true description of the land and its identity with the land mentioned in the mortgage. That having been done, it is immaterial that the particular facts depended on to establish the identity are not alleged in the pleading. There is no repugnancy between the description set out in the body of this bill and that contained in the mortgage; therefore, to make them conform by proof involves no contradiction or variance of the latter.

The question of whether defendants alleged to have purchased portions of the property are chargeable with *322notice of the mortgage is not well raised, for the reason, among others, that the demurrer is addressed to the whole bill which is not confined to those portions but includes in its scope the entire property. The grounds of demurrer relating to notice, however, are not insisted on in briefs for the appellant.

Decree affirmed.

Dissenting Opinion

McClellan, C. J., and Dowdell, J.,

dissent, holding that the bill shows a wholly indefinite description in the mortgage, and fails to allege any fact 'by which the description could be rendered definite.