Haughton v. Sartor

71 Miss. 357 | Miss. | 1893

Cooper, J.,

delivered the opinion of the court.

The appellant sued the appellee upon an instrument in writing which he contends is a contract to convey lands to him, and which appellee contends is itself a conveyance. The instrument recites that the appellee had that day sold to appellant certain lands at a price to be thereafter paid. The lands sold are described in the instrument as the “ south half •(8. i-) of section seven (7), township fifteen (15), range — west; also the east half (E. |) of the south-east quarter (8. E. i) of section twelve (12), township fifteen (15), range nineteen (19) west,” in Monroe county. Upon this instrument being offered in evidence, the defendant objected to so much thereof as related to the land in section seven, upon the ground that as to such land there was a patent and incurable ambiguity, in that the range in which the land was located was not named therein. The plaintiff stated to the •court that in connection with said instrument he proposed to prove by parol that the said land was actually located in range eighteen west, as was known, understood and intended by the plaintiff and defendant at the time of the purchas-e, and that the word “ eighteen ” was omitted after the word “ range ” by accident and mistake.

The court ruled that the ambiguity was patent, and could not be aided by proof. Whereupon the plaintiff' dismissed so much of his action as related to the other lands, and as to the remainder of his suit there was a jury and verdict for the defendant. It will thus be seen that the single question for decision is whether the ambiguity in the instrument is patent or latent. There is much learning upon the subject of' latent and patent ambiguities to be found in the books. But for the decision of this court in Foute v. Fairman, 48 Miss., 536, we would, we think, be safe in saying that no case could be found in which an ambiguity of the character here shown had ever been held to be latent. In that case the omission was of both the township and range, and yet the ambiguity was held to be latent, and not a patent one. In delivering the opinion of the court, Judge Simrall said: “ We know that there are several tracts of land in Copiah county to-which the descriptive words equally apply. It requires, therefore, if the deed shall take effect at all, that extrinsic evidence shall be employed to identify what particular lands were meant. This is a latent ambiguity, which is made to appear by extrinsic evidence.” It will be noted that the learned ’judge appreciated the fact that from the mere inspection of the deed the ambiguity appeared, or, in other words, that it lay on the face of the instrument, which, as he correctly stated, could have no effect at all unless aided by extrinsic evidence. And yet this test, which, under all the authorities, is held to discover a patent ambiguity, was accepted as that of an ambiguitas latens.

In Bowers v. Andrews, 52 Miss., 596, all the judges delivered opinions in which the question was fully discussed. JudgeSimrall was then a member of the court, but" neither in his-opinion nor those of the other judges was any reference made to the case of Foute v. Fairman. That it was virtually overruled by Bowers v. Andrews, is evident from the language of Campbell, J., in which it is said: “But none will deny that when the mere perusal of the instrument shows plainly that something more must be added before the reader can determine which of several things is meant by it, the rule is inflexible that no evidence can be admitted to supply the deficiency.” It would have been well for the court to have declared in the latter ease that Foute v. Fairman was not the law, and was overruled, but such was the necessary result, and it is now expressly announced. The ambiguity in the instrument here sued on was' clearly a patent one, and the court below correctly so ruled.

The judgment is affirmed.