110 So. 610 | Ala. | 1926
Lead Opinion
Appellee filed his bill for the sale and partition of three certain lots in the city of Cullman. By their cross-bill appellants interposed their claim of ownership of the entire fee. The court sustained appellee's demurrer to the cross-bill, and the cross-complainants have appealed.
The instrument in the form of a conveyance under which appellants claim title describes the lots in controversy as follows:
"Part of lot No. 353 being 29' 3"x132; part of lot No. 494 being 104x132; part of lot No. 492 being 165x132.
"On part of lot No. 353 there is a mortgage in favor of the Improved Building Loan Association, situated and lying and being in the county of Cullman and state of Alabama."
The muniment of title under which appellants claim is void for uncertainty, because there is nothing to show what "part" is intended. Mutual Building Loan Ass'n v. Wyeth,
We do not see that the reference to a mortgage helps the matter in the least, for, if it be assumed that the mortgage adequately describes the part with which it deals, there is nothing to show that the part described in appellants' muniment is identical with the part described in the mortgage. Moreover, it may well be said that the reference to certain numbered lots means nothing in the absence of further reference to some certain existent map or plat showing the lots to which the so-called deed refers. Thrasher v. Royster,
The reliance for appellant is upon Chambers v. Ringstaff,
"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 that survey."
So then the only defect in appellee's muniment of title was that it failed to show that the land was situate in this state. In Meyer Bros. v. Mitchell,
"In Chambers v. Ringstaff,
In Jenkins v. Woodward Iron Co.,
"It is true the deed in question [meaning the deed in question in the case then under consideration] conveys the land by numbers merely, without designating either county or state. But the bill of complaint shows that the grantee [grantor?] at that time owned and was in possession of lands in Jefferson county, Ala., described by these identical numbers; and, it not appearing that he then owned other lands described by these numbers, the identification is sufficient, and the conveyance will be pronounced valid" — citing Chambers v. Ringstaff, supra.
In Chambers v. Ringstaff the court said:
"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 be received."
If the learning of that case has any bearing upon the case in hand, it means that the deed under which appellants claim was affected by patent ambiguity, and that the explanation of it offered in appellants' cross-bill cannot be received.
But, when the court came to consider a conveyance describing the subject of conveyance as "certain portions of a lot in the town of Guntersville, Marshall county, state of Alabama, more particularly described as follows, that is to say, two-thirds of the following described lot number 3," which lot No. 3 was accurately described, it said:
"We are of the opinion that the deed of April 25, 1888, from Louis Wyeth to John Brisser and the mortgage of the same date from John and Louise Brisser to Louis Wyeth were each utterly void for uncertainty of description of the land intended to be conveyed. The conveyance is not of the lot which is sufficiently described, nor of an undivided interest in said lot, but only of 'certain two-thirds' of a particularly described lot without any description or even attempted identification of the particular two-thirds of the parcel intended to be embraced in the instruments. The language used would as certainly cover the west two-thirds as the east, or the north or south two-thirds as the east or west, and as well the north as the south, and vice versa; and it cannot be said that it embraces any particular two-thirds part * * * of it, or that a grant of two-thirds of a certain section passes title to the south-west quarter thereof. No title passed to Brisser by this deed, and, both because he was without title and that his mortgage back was void for the like uncertainty of description, nothing passed to Wyeth by that instrument." Mutual Building Loan Ass'n v. Wyeth, supra.
That case may not be on all fours with this, but at least it evidences the purpose of the court as then constituted to preserve a remnant of the statute of frauds in such cases.
We have said enough to dispose of the appeal.
Affirmed.
ANDERSON, C. J., and SOMERVILLE, MILLER, and BOULDIN, JJ., concur.
Dissenting Opinion
The lots sought to be conveyed to cross-complainant (the dimensions of which form a part of their description in the deed) are more particularly described in paragraphs 2 and 3 of the cross-bill, in connection with the further averment that there were no other lots in Cullman county bearing the numbers set out in the description in the deed; that the grantor owned and was in possession of these lots therein specifically described, which lots were designated upon the recorded map of said city or town; and that she owned no other lot of land in Cullman county other than *378 said lots which constituted the only real estate owned by said grantor at the time of the execution of this deed, with the single exception of lot 522 in the city of Cullman, upon which was located grantor's home, and which is not here involved.
The rule is well settled that the law leans against the destruction of a deed for uncertainty of description. Nolen v. Henry,
"This court has gone as far as any other, in admitting parol evidence to sustain the validity of deeds, assailed upon the ground of indefiniteness in the description of the land, but the rule which we have adopted promotes justice, and does not open the door to fraud and perjury."
See, also, Minge v. Green,
I am persuaded the averments above referred to in connection with all other allegations bring the case within the well-recognized rule of Chambers v. Ringstaff,
To the foregoing may be added the following authorities in support of this view and the sufficiency of the cross-bill: Ellis v. Burden,
I therefore respectfully dissent.
THOMAS, J., concurs.
Addendum
It results, therefore, that the application is granted, and the decree appealed from is reversed and the cause remanded.
Reversed and remanded.
SOMERVILLE, GARDNER, THOMAS, and BOULDIN, JJ., concur.
ANDERSON, C. J., and SAYRE and MILLER, JJ., dissent.