58 So. 419 | Ala. | 1912
Plaintiff • sued defendants in a justice’s court for the possession of certain lands, the complaint containing a count in forcible entry and detainer and also in unlawful detainer. Under section 4283 of the Code, defendants transferred the cause to the circuit court, having filed the required affidavit that they “entered on the land sued for peaceably, and under claim of title thereto, and not under claim of any agreement, contract, or understanding with the plaintiff, or those under whom he claims, and that petitioner bona fide desires to contest with plaintiff the title to said land.” On the whole evidence the court gave the general affirmative charge for defendants, and there was verdict and judgment accordingly.
The burden was on plaintiff to show prior possession in himself and either a forcible entry or an unlawful detainer by defendants, or else to show a title in himself superior to that of defendants.—Code, § 4285; Fowler v. Pritchard, 148 Ala. 261, 41 South. 667.
The material facts, as shown by the bill of exceptions, are substantially as follows:
In 1857 plaintiff bought of one Williams Smith “the E. % of S. W. % of Sec. 1, Tp. 8 N., R. 4 west, with the exception of one five acre lot lying in the S. W. corner of said tract being sold to J. B. Worsham by Williams Smith and one 4 acre lot lying in the same corner of said tract of land sold by Philip Cato to Jeremiah Worsham in his lifetime.” On December 16, 1897, W. N. and P. L. Worsham sold to Julia A. Williams (one of
A conveyance of a definite quantity of land in or off of a specified corner of a designated tract is under a well-settled rale of construction, the grant of a corner quadrangle, of equal sides, extending to that corner.—Wilkinson v. Roper, 74 Ala. 140, 148; Doe v. Clayton, 81 Ala. 391, 402, 2 South. 24; Green v. Jordan, 83 Ala. 220, 3 South. 513, 3 Am. St. Rep. 711.
Hence the grant of nine acres in the southwest corner as described in plaintiff’s deed to the Worshams, and in the Worsham’s deed to Mrs. Williams, Avas definite and certain in itself, and could not be aided, qualified, or explained by parol evidence.—Donehoo v. Johnson, 120 Ala. 438, 24 South. 888; Guilmartin v. Wood, 76 Ala. 204. If it were conceded, for the argument, that the additional descriptive phrase in plaintiff’s deed to the Worshams — “the same nine acres as described in my deed” — might be efficient to qualify the clear and wholly unambiguous description preceding it, and alter the grant to something different,- nevertheless there is nothing in that deed to indicate that the tract conveyed was other than a square lot in the corner, since the two lots named are both referred to merely as being in said southwest corner. It is true that the actual location of sections by government surveys, as originally made,
■If there Avas a mistake in the description of this land, the grantor’s only recourse was a proceeding in equity to correct the deed and make it speak the intention of the parties. It cannot be corrected in a court of law. We conclude, therefore, that defendants were entitled to a verdict as a matter of laAV on their legal title, unless plaintiff showed a forcible intrusion by defendants upon his prior actual possession in his own right; there being no pretense that there Avas an unlaAvful detainer after the termination of a possessory holding under plaintiff.
At common laAV the transfer of possession from the grantor to the grantee could be effected only by the ceremony known as livery of seisin. Our statute (Code,’ § 3364) dispenses Avith this ceremony,' and declares that “the property and possession of the grantor pass as fully by his conveyance as if seisin' had been formally delivered.” This means that from the instant the "deed is delivered the grantor’s possession becomes that of the grantee'. : "' ' • '
And, if thereafter the grantor remains in possession,he is presumptively but a tenant at the sufferance’ of the grantee. .“He avíII be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation, and a notorious assertion of right in himself, avíII be sufficient to change the character of his possession, and render it adverse to the grantee.”—Yancey v. S. & W. R. R. Co., 101 Ala. 234, 13 South. 311; Ivey v. Beddingfield, 107 Ala. 616, 18 South. 139.
We think the general affirmative charge was properly given for defendants, and other assignments of error will not be considered.
Affirmed.