Harrelson v. Harper, 54 So. 517

Harrelson v. Harper

54 So. 517 | Ala. | 1911

ANDERSON, J.

This court has gone the full length in admitting parol evidence- to sustain the validity of deeds, assailed upon the grounds of indefiniteness in the description of the land. And as said in the case of Cottingham v. Hill, 119 Ala. 353, 24 South. 552, 72 Am. St. Rep. 923: “The rule which we have adopted promotes justice, and does not open the door to fraud and perjury. In all cases the writing has been sufficient to show a bona fide sale and conveyance was intended by the parties, and, where this appears, no1 injustice results, if by parol evidence, the precise property intended to be conveyed can be clearly identified.”—Chambers v. Ringstaff, 69 Ala. 140; Homan v. Stewart, 103 Ala. 664, 16 South. 35; Webb v. Elyton Land Co., 105 Ala. 471, 18 South. 178. The description of the property conveyed must, however, possess such data as will afford a basis for the parol evidence. It must so designate the property as to enable its identification and location by parol.—Griffin v. Hall, 111 Ala. 601, 20 *122South. 485; 1 Greenleaf on Evidence, § 301. The deeds in question attempt to convey the land by metes and bounds as constituting a particular tract, and the sale was not by quantity. The, description by metes and bounds is so indefinite and uncertain as to render it void. The point of beginning is uncertain. There may be many oak trees above the Jones blacksmith shop. Nor does it say how far above the Jones blacksmith shop. Again, the word “above,” as used in this instance, is capable of many meanings. One might take it, as meaning north, while another might consider it to mean an elevation of the earth, whether north, east, south or west. Aside from this effect, and conceding that there is a definite starting point, some of the directions as to the lines to be followed are too indefinite to afford an accurate survey. It might be that, notwithstanding the particular description was void for uncertainty, the deed could be upheld by parol, if there was such a general description or designation of the close as to render it capable of identification or location by parol; but, with the particular description eliminated from the present deed, all that we could have to locate the land would be by the general description, and which is a certain tract of land within the corporate limits of Dadeville, in section 4, township 21, range 23 Tallapoosa county, containing 20 acres, “more or less.” Now, if the deed attempted to convey by quantity instead of metes and bounds, the words “more or less” would not qualify or restrain, but would be construed to meet any small variance in the estimated and represented quantity and restrain the representation, “to a reasonable or usual allowance for small errors in surveys, or for variations in instruments, or as estimated by the parties, and, if the deficiency be relatively large, equity will allow the purchaser a. corresponding abate*123ment of tbe purchase money.”—Terrell v. Kirksey, 14 Ala. 209; Couse v. Boyles, 4 N. J. Eq. 214, 38 Am. Dec. 514. On tbe other band, where tbe land is described by metes and bounds, as was done in tbe. present case, as constituting a specific tract, tbe statement “more or less” preceding tbe quantity are equivalent words, qualifying and restraining tbe representation of quantity, and show that tbe parties did not regard tbe number of acres stated as an essential ingredient of tbe contract, but merely descriptive.—Hodges v. Denny, 86 Ala. 226, 5 South. 492. Had tbe parties conveyed tbe land by quantity and not by metes and bounds, tbe case of O’Neal v. Seixas, 85 Ala. 80, 4 South. 745, would authorize parol evidence to show that tbe grantors and their ancestor owned but one 20-acre tract in said section and town, and which would render tbe description sufficiently definite; but, as tbe land was sold by metes and bounds and not by quantity, we must construe tbe deed as intending to convéy only certain lands within certain boundaries, regardless of quantity, and not as a conveyance of all of a 20-acre tract owned by them in section 4 in tbe town of Dadeville.

The foregoing expresses, however, only tbe views of tbe writer, as a majority of the court are of tbe opinion that the description is not void for uncertainty, and can be aided by parol evidence, which tbe trial court erred in excluding.—Cottingham v. Hill, 119 Ala. 353, 24 South. 552, 72 Am. St. Rep. 923; Webb v. Elyton Land do., 105 Ala. 471, 18 South. 178. It therefore results that the judgment of tbe circuit court must be reversed, and tbe cause remanded.

Reversed and remanded.

Dowdell, C. J., and Simpson, McClellan, Mayfield and Sayre, JJ., concur. Anderson, J., dissents.