Hooper v. Laney

39 Ala. 338 | Ala. | 1864

PHELAN, J.

The chancellor concedes that the case comes properly within the jurisdiction of the court of .chancery; but he dismissed the bill, and dissolved the injunction, on the ground that the description of the land, as set out in the bill and contained in the agreement, was too uncertain and indefinite to base a decree upon. The principle upon which the action of the chancery court proceeds, therefore, is, that the agreement is void for uncertainty ; and the uncertainty alleged is the want of a definite description of tbe land which Hooper asked to have conveyed to him, or decreed to him. The single inquiry, then, to which this case is reduced, is this : Is the description of the land sold by Laney to Hooper, as contained in the written agreement, too indefinite and uncertain to enable the court to know for what lot or tract it is asked to render a decree ?

The law in respect to description is well stated in Boardman et al v. Lessees of Ford, 6 Peters, 345. “ If the lands granted be so inaccurately described as to render its identity wholly uncertain, it is admitted that the grant is void. The meaning of parties must be ascertained by the tenor of the writing, and not by looking at a part of it; and if a latent ambiguity arise from the language, it may be explained by parol.”

Upon considering carefully the description contained in this agreement, and after looking into the cases, we can not agree with the chancellor that the agreement is void for uncertainty, and that the bill should have been dismissed for that'cause. In the language of one of the cases, “it should be a very gross case to justify such a course.” 2 Green’s Chan. Cases, 60. This agreement describes the land as “ part of a tract lately bought by Laney from Mr. Oliver.” It is then described as “bounded by the section line running from the N. F. (north-east) corner of said tract to the stake put up by Bristoio on the S. E.” (south-east.) From this stake, the line is to run “a due north-west course, until it strikes the main road; then “along said road, until it strikes the northern line of said tract, and thence to the beginning.” Instead of there being any uncertainty about this boundary, we are inclined to think that, whenever the surveyor, or any other person, wishing to trace said “part of the tract,” shall find the tract itself which was bought by Laney from Oliver, he immediately has a beginning point — namely, its “ north-east corner” — which is upon a “ section line;” and the remainder of his tracing or survey has marks and bearings that are distinctly set out. He goes from the north-east corner on the section line, to the stake set up by Bristow. (This he can inquire after, if it be standing, and of its whereabouts if it has been removed or lost by decay.) From .this stake be proceeds in a ;due nortb-west course, until be strikes tbe main road. If there be more roads than one, be inquires for tbe “ main road.” He proceeds along this, until he reaches tbe northern line of tbe tract bought by Laney_from ‘.Oliver, and follows it until be reaches tbe north-east corner at'which be started.

That no difficulty exists in a survey of this part of tbe tract, is evinced, we think, by tbe factthatijthe respondent, in bis answer to tbe bill, says, “a survey of said land, and a division thereof, was bad in accordance with said instrument,” (tbe agreement set out,) “ which survey defendant believes correct; and tbe amount which fell to said Hooper was forty-nine acres, two roods, and twenty-six perches.” A deed was afterwards drawn up by Hooper, according to this survey, and executed by Laney; but they disagreed about tbe amount of tbe purchase-money, and tbe matter was thus left incomplete. But no question seems to have arisen between them, respecting tbe land for which tbe agreement called.

To show tbe action of tbe courts upon this question of description, and confirmatory of tbe view we take in this, we refer to a few of tbe cases.

Barry v. Coombe, (1 Peters, U. S. R. 64,) was a case for a specific performance. Goombe made out a statement of an account between himself and Barry, consisting of various items, amounting to a large sum. In this statement be credits Barry as follows: “By my purchase of your half of E. B. wharf, and premises, this day, as agreed on between us, $7,578 63.” This paper was signed by Goombe, each party having a copy. On a bill for a specific performance, Barry set up tbe uncertainty of tbe agreement. Tbe court said, for anything that appeared on tbe face of tbe instrument, “E. B. wharf” may be as-definite a description of locabty as F. street, and overruled tbe objection.

Ring v. Ashforth, (3 Iowa R. 452,) was a bib to enforce a specific performance of a contract to convey real estate, in which tbe land was described as follows : “Fifty-nine 37-100 acres of land, being so much of tbe west half of tbe northeast quarter of section twelve, in township number eighty-one, north, of range six, of tbe 5th P. M.” (principal meridian). It was objected, tbat there was no description definite enough to describe the land. The court said: “If this was an action of right, brought for a specific portion of this eighty; and plaintiff, to prove his title, had introduced his deed containing the description, the question, we think, would have been different. In that case, the court could not have ascertained, from his deed, that he had title to the identical portion claimed by his petition. And yet, between him and his grantor, the deed would have been sufficient to pass that interest in the eighty acres. Under such a deed, as between them, he would have a known interest in said west half of the north-east quarter, &c. It might not be a known interest in exact location, but definitely so as to amount. * * * * After he obtains his title, it may becqme a question between him and the person holding title to the remaining portion of the eighty, as to what part or portion each takes; and in-that case, the description used may become of more importance. He may have to institute further proceedings, by his suit for partition, or otherwise, to settle and definitely fix his rights. But these are after considerations, in which these respondents, so. far as we can see, have now no interest.”

In the case of Robison v. Hornbaker, (2 Green’s Chan. Cases, N. J. 60,) which was a case for a specific performance, the boundary mentioned in the agreement contained no reference to any county, or township, or legal subdivision of land; it made no reference to any adjoining-tract ; it was to begin “at a corner to be made in the middle of the road, and in the old straight line of Fenton and Loiter’s surveys, and to run thence along said road to a certain store on the'west side of said road, and south of another old road, and then to run from thence a westerly course, crossing the Brasscastle brook below where the small stream puts in from the meadow, and running on the south side of' said creek out near where a certain stake is put up in the middle of the creek, &c. The only natural object having a proper name, in the entire boundary, is “Brasscastle brook”; the only other mark in the boundary, with a proper name, is “Fenton andLofter’s hue”; the other marks and points are “a road”, “a stone”, a “stake”, “a large chesnut or rock-oak tree”, and tbe like. There was a demurrer to the bill, on the ground that the description of the land was too indefinite. The judge says: “With these désignations of locality in the description, I see no propriety in turning the party out of court on a demurrer. It should be a.very gross case to justify such a course.”

The decree below is reversed, and the cause remanded.