Early & Co. v. Long, 42 So. 348

Early & Co. v. Long

42 So. 348 | Miss. | 1906

Whitfield, C. J.,

delivered the opinion of the court.

The court below should not have permitted any evidence to be introduced by the defendant, for the reason that no bill of particulars was furnished by the defendant, after demand made upon 'him in strict compliance with the statute. Code 1892, '§ 1652. See Goforth v. Stingly, 79 Miss., 398 (30 South. Rep., 690).

The action of the learned judge is correct, so far as his construction of the deeds in the case is concerned. He rightly charged the jury to find for the plaintiff as to the thirty-one and one-quarter acres, and he correctly held that the description of the fifteen acres in the defendant’s deed was a good description. The words “more or less” after the quantitative description fifteen acres, merely signify a sale in gross of fifteen acres: There is nothing to the contrary in Leake v. Caffey, 19 South. Rep., 716. The expression in that opinion, to the effect that the description of the land in the trust deed was not good, was made because there were ’two tracts of land described, and not a single quantity of land followed by the words “more or less.” The defendant’s deed conveyed fifteen acres, to be taken in a square body off of the southwest comer of the northeast quarter of the section. See 15 Am. & Eng. Ency. Law, 718 et seq.

But the court erred in charging the jury to find “for the defendant for the fifteen acres mentioned in the declaration and pleadings in this case,” for the reason that plaintiffs’ declaration, and their deed', both describe the fifteen acres as being “15 acres on the west end of the S. {■ of the N. E. £ of the *291section.” A simple diagram of the two descriptions, one in the declaration and the plaintiff’s deed, and the other in the defendant’s1 deed, will show the error of the court plainly. The jury responded to the. charge, and by their verdict gave defendant not the fifteen acres he was entitled to, but part of the fifteen acres and part of other land to which’ he had no title.

The judgment is reversed, and the cause remanded, that the parties may reform their pleadings, and that the court below may, if it sees proper to do so, on good cause shown', allow defendant still to file his bill of particulars. The case presents the curious attitude of being one in which the construction put by the learned judge below on the deeds is strictly correct, and yet we are forced to.reverse his action because of the two singular errors indicated.

Reversed and remanded.