Donehoo v. Johnson, 120 Ala. 438

Donehoo v. Johnson

120 Ala. 438 | Ala. | 1898

DOWDELL, J.

The action disclosed by the record is a statutory real action, in the nature of ejectment, brought by the appellee, as plaintiff, against the appeL lant, as defendant, to recover the possession of the west half of the south-east quarter of section twenty-one, in a designated township and range, situate in Blount county, in this State. Both parties claimed title through one *443John Reid, deceased; the plaintiff, as his only child and heir at law, and the defendant, as purchaser at a sale made by the register in chancery, under a decree of the chancery court, condemning to sale for the satisfaction of the creditor’s demand, certain lands, claimed to include the land in controversy, as having been fraudulently conveyed by Reid, and, at his instance, by Murphree, his vendor, to one S. H. C. Johnson, Reid’s son-in-law, the then husband of the plaintiff, he having since died, and to the plaintiff on a bill filed by a creditor of Reid against his personal representative and others. The purchase at this sale was made in 1890, and this suit was commenced on 13th February, 1896. It appears'from the evidence that one Asa R. Murphree acquired the land in controversy, as a part of a large tract, containing nine hundred acres, by purchase in 1860, and went into the possession thereof; and that in 1862, he sold to John Reid about six hundred acres of the land so purchased, and placed him in posseesion. In the deed which Murphree executed to Reid, in consummation of this purchase, the lands were described by metes and bounds, and in this description, by manifest error or mistake in the draughtsman in describing the boundary line on one side of the purchased lands, the land in suit was omitted. The line as to which this mistake was made is described in the deed as running from a stake in a designated line, according to the government survey, “west with said line to a stake at the northwest corner of the southeast quarter, of said section twenty-one,” whereas it should have read, in order to convey the lands which Reid purchased from Murphree" as running west with said line to a stake at the northeast corner of said quarter section. The effect of this mistake, as we have said, was to entirely omit from the conveyance the land sued for. That this mistake was made is manifest from the evidence, and we do not understand that it is denied by counsel for either party.’ Reid, however, took possession of this part of the lands purchased, as well as of the- remainder, and continued therein, claiming title thereto, for such a period, and under such circumstances, as gave’him title by adverse possession. The deed made by the register in chancery to the defem dant, under which the latter claims, uses identically the *444same description as was used in the deed from Murphree to Reid, thus omitting from that deed the land in this suit. On the trial in the lower court, the defendant contended, and he renews that contention in this court, that, in the description or designation of the line above mentioned, there was a latent ambiguity, which he sought to explain by parol evidence, thereby attempting to stop the line at the northeast corner of said quarter section, and so include the lands sued for. In aid of this contention, he offered evidence tending to show that, in fact, there never was any stake at the northwest corner of this quarter section, but there was one at the northeast corner thereof ; that when Murphree sold the lands to Reid, he showed him the boundaries of the land sold on the side on which the line in dispute was, and that the boundaries thus shown carried the line only to. the northeast corner of the quarter section, which was in the woods, and not to the northwest corner, which was'in a field ; and that, in various ways, this line was recognized and treated by John Reid from the date of his purchase to the time of his death, in 1878, and after his death, by his widow, his son-in-law, and his daughter, the plaintiff in this suit, as stopping at the northeast corner, and not running to the northwest corner ; . the plaintiff acquiescing, by her acts and conduct, in this Construction of this boundary line for several years after the defendant’s purchase.at the sale made by the register in chancery. This is the legal effect and clear purport of all the testimony offered on this point. Much of this testimony was allowed by the court without objection, and some of it was introduced by the plaintiff. The record'of the proceedings in the chancery court' in which the decree was entered under which lands were sold to the defendant, and the deed executed to the defendant" by the register, wére, however, on' the objections of the plaintiff, excluded from the jury, on the ground, it is apparent, that these proceedings and the decree rendered therein, and the deed executed by the register, did not embrace the lands involved in'this suit. The court, on the request of' the plaintiff, gave the general affirmative charge in her favor;, and to this ruling, and to the rulings in excluding from'the jury the record and pro- ' " ’ *445ceedings in the chancery suit, and the deed executed by the register, and to other rulings on the evidence, and to the refusal of the court to give special written charges asked by the defendant, the latter duly excepted.

This case was before this court on a former appeal, when a judgment rendered by the circuit court was reversed and the cause remanded, on a point not made by the present record.—Donehoo v. Johnson, 113 Ala. 126. On that, appeal, however, the same contention was made as is now insisted upon, in respect to the existence of a latent ambiguity in the description of the land, authorizing the introduction of parol evidence to show the true '.description intended. We have carefully considered the testimony contained in the record on this appeal, and, while it may be fuller and more explicit than it was presented on the former appeal, its legal effect is the same-. On the former appeal, we held that the facts shown by the testimony did not disclose a latent ambiguity “in any respectand of the correctness of that decision we have no doubt.

Between a latent ambiguity and a mistake or error in description, there is a manifest difference; the former may be explained and the description aided by parol evidence in a court of law; while the other requires the jurisdiction o.f a court of equity for its correction. In the case of a latent ambiguity in the description of land in a conveyance, the title is not thereby defeated but parol evidence may be introduced to show the identity of the subject-matter of the conveyance ; in the case of an error or mistake in the conveyance, however, if such error or mistake is material to the description, no title passes, and the remedy of the purchaser is by bill in equity for a reformation of the instrument. The same principle which would allow the admission of parol evidence in this case, would allow the same character of evidence in aid of a conveyance, describing the land as the southwest quarter of a designated section, when the land intended to be conveyed was the southeast quarter of the section. There is, and can be no difference in principle.—Guilmartin v. Wood, 76 Ala. 204, is, on principle, directly in point. In that case, Mr. Justice Clop-ton, after laying down some of the principles controlling the construction of written instruments, and the admis*446sibility of párol evidence in aid thereof, says : “In construing a deed, an ambiguity in the description of the premises conveyed may be explained by parol evidence ; and when the description is by metes and bounds, evidence of the situation and locality of the premises, and of their identity, according to the description in the conveyance, is admissible. But such evidence is not admissible to show a mistake in the description, or to alter or vary the boundary, or to substitute another and different boundary for the one expressed in the conveyance.” In that case, the conveyance described the lot-as on the east side of a street, whereas the lot intended to be conveyed was on the west side of the street; and it was held that parol evidence was not admissible to show title in the lot intended to be conveyed; and, in this connection, it was further said : “It may be conceded that this part of the description is a mistake of the draughtsman of the deed. If so, a court of law is without power to reform it; and without having been reformed by a court having jurisdiction, it is inoperative to pass the legal title to land situate on the west side of‘the street. The deed having been offered as a muniment of title, the admission of evidence aliunde to show’ such a mistake, is to ascertain and declare what was intended to be written, and not the meaning of what is written, in the conveyance.”—2 Am. & Eng. Encyc. Law (2d ed.) p. 304; 1 Jones on Law of Eeal Property in Conveyancing, §§ 335, 336.

If the. description of the boundary line in question had terminated it generally at a stake, without more, parol evidence might have been admissible to show the location of this stake ; but the description goes further and locatés this stake at the northwest corner of the quarter section, a point well defined and fixed by the government survey ; and it matters not, so far as the deed under which the defendant claims is concerned, whether or not in fact there ever was a stake at that point. It is clearly the effect of the description, that the line should run to a point at the northwest corner of the quarter section designated in the deed, and not to stop at the northeast corner thereof.

*447On behalf of the defendant, the county surveyor was examined as a witness, who testified that, in December, 1895, he surveyed the lands described in the register’s deed to the defendant, and made a map thereof, which 'map was produced and read in evidence, and is copied in the transcript. After describing the survey made by him, and stating the manner in which it was made, the witness testified, that the “deed did not include or describe the land sued for in this action.” To this statement the defendant objected, on the ground that it was illegal, irrelevant,-and called for a conclusion, and that the deed was the best evidence of the land it included. The deed itself was in evidence, and the witness was testifying in respect to the identification of the lands thereby conveyed. He had the deed before him and the map of the survey which he' had made, both of which, when compared one with the other, showed that the land in controversy had not been conveyed. The effect of his testimony, under these circumstances, was that the description of the lands, as contained in the register’s deed to the defendant, did not include the land involved in this suit. The testimony was clearly competent; and the court below committed no error in overruling the defendant’s objection.

There is nothing in the argument for a reversal based upon the proposition that the plaintiff is estopped from claiming title to the land sued for. It is shown by the 'evidence that John Beid, several years before his death, executed a conveyance to his son-in-law, S. H. C. Johnson, the husband of the plaintiff, conveying lands by the same description as that employed in the register’s deed to the defendant; and that after her husband’s death, subsequently occurring, the plaintiff was appointed administratrix of his estate, and, as such administratrix, she went; into the possession of the lands conveyed by the deed to her husband, and also the land sued for, as a part thereof, and continued in such possession until she resigned, as administratrix, and, afterwards, upon the appointment of the defendant as thé administrator de bonis non of her deceased' husband’s estate, she delivered the'possession of the lands to the defendant as her 'successor in the administration, as a part of the estate of her deceased husband. This conduct on her. part did *448■not work an estoppel; and even if it did, it did not operate to divest her of the legal title vested in her by descent. Estoppels in .pais can not defeat a recovery in ejectment founded upon legal title in the plaintiff. These propositions are too well settled to require discussion, or the citation of authority in support of them.

As heretofore stated, both parties claim under John Reid. The bill of exceptions expressly states: “The plaintiff claimed title to the land in controversy as the sole heir of John Reid, deceased, and the defendant claimed title under a purchase at the sale under a decree of the chancery court to satisfy a judgment against said John Reid, deceased, and defendant statedhe would •not set up any title anterior to the title of said John Reid, deceased.” The deed by the register to the defendant was executed several years after the execution of the deed by Reid to Johnson ; and Johnson was made a party defendant to the chancery suit, and, after his death, the suit was revived against his surviving wife, the plaintiff here, as his personal representative ; and in that suit, the deed from Reid to Johnson was one of the conveyances attacked by the bill filed therein as fraudulent, and it was, by the decree rendered therein, in legal effect, vacated and set aside upon that ground. . The evidence- introduced on behalf of the defendant tended to show adverse possession in Johnson of the lands conveyed by Reid to him, and the land involved in this suit, as a part thereof, for the period of ten years prior to the bringing of this suit. This adverse possession was pleaded in defense of the suit. In no way is it shown by the evidence that the defendant connected himself with Johnson’s title claimed to have been derived by him from Reid; on the contrary, as stated- above, the deed conveying that title was, at the suit of a creditor of John Reid, held fraudulent and void, and was, for that reason, vacated and set aside, and the lands ordered to be sold, and were sold by the register, as the property of John Reid, and at the sale the defendant became ■the purchaser, and such purchase and the deed by the register thereunder, so far as shown by the •record, constitute the only pretense of title ever asserted by the defendant. It is too clear for argument, under *449this state of the proof, that the defendant claimed title under John Reid, the source from which the plaintiff also derived' her title. Claiming title from the same source, it is the settled law of this State that he cannot set up an outstanding title in a third person to defeat a recovery by the plaintiff.—Gantt v. Cowan, 27 Ala. 582; Pendley v. Madison, 83 Ala. 484. Unless he acquired title from this source, he was a mere trespasser, and is for that reason deprived of such defense.—Stephenson v. Reeves, 92 Ala. 582; Matkin v. Marx, 96 Ala. 501. Again, whatever title he has, was derived under a decree of a court of competent jurisdiction, declaring the Johnson deed fraudulent, and vacating and setting it aside upon that ground. Clearly, he cannot be heard, in such case, to now defend under the Johnson deed, or upon adverse possession by Johnson, claiming under that deed.

There is no error in the record prejudicial to the appellant, and the judgment of the circuit court is affirmed.

The foregoing opinion was prepared by Brickell, C. J., and is adopted by the court.