Chambers v. Ringstaff

69 Ala. 140 | Ala. | 1881

STONE, J.

There can he no question that the plaintiff below showed a right of recovery in this ease, if the description of the land in the mortgage is not too uncertain to maintain the action.— Chapman v. Abraham, 61 Ala. 108; Slaughter v. Swift, 67 Ala. 494.

It is contended for appellant that the mortgage made by Knight and wife to Bingstaff is void for uncertainty. That mortgage is the title under which Bingstaff claimed. The argument is, that because the land is only described by its survey-numbers of section, township and range, without reference to the State or county, or basis meridian, it is void for uncertainty, The formula of the argument is, that courts take judicial notice of the Government surveys of the United States, • and therfore we judicially know that the description employed in the mortgage under discussion, designates with equal clearness many tracts of land found in the many Goverment surveys. This, it is contended, raises the question of patent ambiguity, which the authorities say can neither be explained nor made certain by 'parol proof. The argument states the rule correctly, and the question arises, does this case fall within the rule?

In Comm'rs Court of Russell v. Tarver, 25 Ala. 480, and in Long v. Pace, 42 Ala. 495, the question arose on pleadings. In each case the description was by section, township and range, without any averred fact in aid of the description. There is but one tract of land in the State of Alabama which corresponds to the description given in either of the cases above mentioned, as we understand those cases. In the'last case, the range given is evidently 28, although stated at one place as range 8. In each case this court ruled that the description was too indefinite, and that the pleading was fatally defective for uncertainty. In the last case, which was a chancery suit, there was a remandment of the cause, which would not have been ordered, unless the defect was considered amendable. To the same effect are the following cases': Cochran v. Utt, 42 Ind. 267; and Murphy v. Hendricks, 57 Ind. 593. Boyd v. Ellis, 11 Iowa, 97, and Holmes v. Evans, 48 Miss 247, are somewhat different.

The distinction between latent and patent ambiguity has long existed, and the general rule applicable to each class of cases should not be disturbed. When a contract or conveyance, on its face, or aided by judicial knowledge, equally describes two or more persons, things etc., this is patent ambiguity, or ambiguity apparent. In such case, the rule is clear, and we do not wish to depart from it, that parol proof of what was intended by the contracting parties will not he received. Latent ambiguity exists, when, on the face of the paper, no 'doubt or uncertainty exists, but by proof aliunde, the language is shown to be alike applicable to two or more persons, things etc. When this is the case, the uncertainty or ambiguity may be explained or cleared up, by the same character of proof as that by which it is made to appear. These are familiar elementary principles. But there are cases involving principles, which are scarcely referable to either of these heads. They may be styled exceptional shadings of patent ambiguity. They arise, when on mere inspection, there does appear to be an uncerainty or ambiguity. This frequently grows out of a careless use of language, and sometimes results from the many shades of meaning usage and provincial habit accord to the same word or expression. Out of this has grown a seeming modification of the old rule as to patent ambiguity, which Mr. Justice Story has characterized as an intermediate class of cases, partaking of the nature both of latent and patent ambiguity. That learned jurist, in Peisch v. Dickson, 1 Mas. 9, says: “In such a case I should think parol evidence might be admitted, to show the circumstances under which the contract was made, and the subject-matter to which the parties referred.” lie illustrates his views as follows: “ The word ‘freight,’ has several meanings in common parlance; and if by a written contract a party were to assign his freight in a particular ship, it seems to me that parol evidence might be admitted of the circumstances under which the contract was made, to ascertain whether it referred to goods on board of the ship, or an interest in the earnings of the ship.” He does not state in what manner or form the proof shoidd be made, to explain this apparent uncertainty. In the case of Smith v. Doe, ex dem. Lord Jersey, 2 Brod. & Bing. 473, 550 — a case before the House of Lords — Bayusy,- J. employed the following language: “ But I apprehend that in judging of the true intent and meaning of the indenture of July, 1757, we are at. liberty to look at the state of the property at the time that indenture was made, and see to what restrictions it was then subject, and what rights the settlor there had. The settlor has used the indefinite words, ‘a power of re-entry.’ By showing, as I do, that there are many such powers, I show that there is an ambiguity in those words, either latent or patent, [it was clearly patent, for it was a matter of law, judicially known to the court, that there were several kinds of powers of re-entry] and may I not refer to the existing state of the property at the time these words were used, to see what was the intention of the settlor, and in what sense she used those words ? .... I am not offering declarations of what the party said she meant; I am not construing a legal instrument by the acts of the parties, or by their understanding upon it; but, by showing the circumstances and situation of the party, and the estates and interest she had at thé time, I am enabling the House to judge what, in legal construction, was her meaning..... If a man makes any d.eed or will, have I not a right to know what estate he had at the time he made such deed or will; and does not the construction vary, in some cases, according to the estate? If I grant a man an estate for life, without saying whether for his life or mine, is not evidence admissible to show what interest I had in the premises? For, if I was tenant in fee, he will take an estate for his own life; if I was tenant in tail, or for life only, he will take for mine. If a man bequeath me 10,000£ 3 per cent, consols, it will be a specific legacy if he have that stock at the time; not specific, if he have it not. Evidence is, therefore, admissible in such case to show what was tjie state of his property at the time he made his will, and the construction upon the will is one way or the other, according to the result.” See also, 2 Phil. E-v., Ed. 1859, p. 747, note, 515. In note l to 2 Bigelow’s Jar. on Wills, page 424, is this language: “ Observe that in all the above cases, the parol evidence is not adduced to show that the testator actually intended the devise to have the operation which is given to it, but merely to supply facts from which the court infers such to be the intention.”.

The present statutory real action was instituted by Pingstaff, and he avers that the lands sued for are situate in Montgomery county, State of Alabama. The title on which plaintiff relied for recovery is a mortgage executed to him by Knight and wife in 1873. It was admitted in the court below that the lands sued for were, when the mortgage was made, the statutory separate estate of Mrs. Knight, and that, before this suit was brought, she died intestate, leaving her husband surviving her. Under the statute, Code of 1876, § 2714, Mr. Knight took an estate in the realty of which his wife died seized, and intestate, for the term of his life, and that interest vested eo instanti in Pingstaff to the extent of his mortgage, by virtue of the statutory implied covenants contained therein, unless the mortgage is void for uncertainty in the description of the land. — Chapman v. Abraham, 61 Ala. 108. The description of the lands in the mortgage, as we have said, is only by section, township and range. It calls for parts of sections 7 and 17, in township 12, range 18. Nothing is said of the State, county, land district, or Government survey in which the lands lie. Now, we judicially know that there is but one tract of land in Alabama which corresponds with this description. There is but- one range 18 in the State, and that lies east of the basis meridian of St. Stephens. There is but one township 12 that bisects range 18, and that- is north of the base of that survey. In aid of the description in the mortgage, there was oral testimony given to the jury, that when the mortgage was made, Mrs. Knight owned, and she and her husband resided on lands, situate in Montgomery county, Alabama, known by the same numbers as those employed in the mortgage. There is no proof that either of them owned any other lands, either in Alabama- or elsewhere. It was admitted that the lands sued for had been the property of Mrs. Knight.* Now, if it be conceded that the unaided description of the lands given in the mortgage is too uncertain, because it equally describes other lands in other Government surveys outside of the State, how stands the question, when it is shown that Mrs. Knight owned and occupied the lands thus numbered, which are in Alabama, and there is an absence of proof that either she or her husband owned or claimed any •other lands, either in this State or elsewhere ? It would be very unreasonable to -presume they intended to convey lands they had no claim to. We rather presume they intended to convey lands they owned. Doubtful terms of a contract are construed most strongly against the grantor or promissor, ut ■res magis valeat qua/ni pereat. We hold, then, that when it was admitted, or found by the jury, that Mrs. Knight owned the lands sued for when the mortgage was made, in the absence ■of other proof that she or her husband owned or claimed other • lands falling within the description, it then became the duty of the court to pronounce the mortgage a valid conveyance. We wish not to be misunderstood. The interpretation of the mortgage, and judgment upon its validity vel non, were questions for the court, while the finding of attendant facts and circumstances were functions of the jury. Applying this principle to this case, if Mrs. Knight’s ownership of the land in controversy, her possession, etc., were only shown by the ordinary methods of proof, without documentary evidence of title in her, then the charge should be, if the jury find the fact of ownership etc.,- then the mortgage is not void for uncertainty. We make this statement, to prevent the blending and confusion of the po.wers of the jury with those of the court.

It was not permissible for Ringstaff, as a witness, to testify to the intention of the parties to the mortgage. That pertained to the office of interpretation — the duty of the court — aided by ascertained, attendant facts, as we have shown above. But the witness gave this testimony in connection with other testimony clearly legal, and the objection and exception were to it as a whole. -The court did not err in overruling the objection. — 1 Brick. Dig. 886, § 1186.

The charge of the court Avas in accordance with the views above expressed.

Affirmed.