Griffin v. Hall

115 Ala. 482 | Ala. | 1896

HARALSON, J.

The description of the lot sued for in the original complaint, as declared by us on a former appeal, was neither certain in 'itself, nor did it afford any data by reference to which it could possibly be made certain, and the action of ejectment could not be maintained on it.—Griffin v. Hall, 111 Ala. 601.

When the case was returned to the circuit court, the complaint was amended in its description of the lot sued for as follows : ‘ ‘ One brick storehouse and the lot of land covered by said storehouse building, and bounded on the south by the brick storehouse formerly occupied by A. T. Filligan, and now by Gf. W. Connor; on the west by a vacant lot, and on the north by a vacant lot, and on the east by the street, which street was formerly known as the Clay Hill Road, said storehouse and lot being in the town of Brundidge, Pike county, Alabama,” &c. This description is certain to all intents, and by it the property may be certainly located.

The deed of the sheriff under which the plaintiffs claimed said lot, aud by which they sought to recover the lot described in the complaint, describes the property as follows : “One lot in the town of Brundidge, situated in S. 26, T. 9, R. 22, and bounded on the south by above named section, extending back 105 feet, and bounded on the east by said Foreman’s brick building, and on the west by G. W. Hunter’s lot, — said lot containing 56 feet fronting Troy Road ; also the lot adjoining thereto on the east, together with the brick bidlding thereon, ’ ’ &g. ; the italicized words being the description of the lot in suit.

The description in the complaint and that in the deed are variant. It is well settled that when a conveyance contains a defective and indefinite description of land, it may be aided by parol evidence if it is capable of being made certain.—O’Neal v. Seixas, 85 Ala. 80; Driggers v. Cassady, 71 Ala. 530; Clements v. Pierce, 63 Ala. 292.

The plaintiffs attempted by parol proof to show that the lot described in the deed was the lot described in the complaint. This they attempted by the examination of Joseph Logan. This witness does describe the lot mentioned in the complaint, but his description is no more certain in its identification of the lot described in the plaintiffs’ deed, than the description of it in the complaint itself is.

There are two lots described in the deed. The first one thereizz. mentioned, as we have seen from the description of it set out above, is bounded on the south, east and west, but not on the north. The other lot described therein, — the one in suit, — has its description entirely with reference to the first named lot, the only description of it, as we have said, being, “also the lot adjoining thereto on the east, together with the brick building thereon.” The fact is, the lot first described in said deed is bounded on the east, as is shown by the aznended complaizzt azid plaintiffs’ said witziess, by a street formerly known as Olay Hill road ; and so far as appears, there is zio building on a lot east of said first described lot.

The witness examined by plaizitiffs znakes it plain that the lot sued for azid the one described in the deed, are not the same lots. We can not make them such without injecting into the deed a correction, to make it cover a lot in no way described therein. This can not be done. If the deed describes a lot entirely different from the one intended to be conveyed, the one intended to be conveyed can not, in order to maintain the title to it, be shown by parol evidence to be the one that was conveyed. If the deed is to be corrected, it must be done in another forum. All that it is competent for a court of law to do in aid of the description of land in a deed, which is uncertain, is to allow parol evidence to be introduced, in order that that which is uncertain in description may be made certain.

The court erred in admitting said, deed against the objections of the defendant, and in giving the general' charge for the plaintiffs.

Reversed and remanded.