Hurt v. Freeman

63 Ala. 335 | Ala. | 1879

BBIOKELL, C. J.

A bill for the foreclosure of a mortgage should so describe the mortgaged property, that, if a sale is ordered, the officer of the court may with certainty and safety execute the decree, and that purchasers may be informed of the particular premises which are exposed to sale, and which they can acquire. — Long v. Pace, 42 Ala. 495; Williams v. Roe, 59 Ala. 629; Whitney v. Beal, 5 Blackf. 143. If the mortgage is not certain in its description of the premises upon which it operates, and it is capable of being rendered certain by reference to extrinsic facts, these facts should be averred in the bill.

Following the description in the mortgage, the bill states the premises as certain lands, lying in the county of Bussell, in the State of Alabama, “about one thousand and fifty acres, and bounded as follows : On the north by Mrs. Leonard; on the south by S. Pitts'; on the West by Illges & Ledbetter.” This description is too vague. We do not mean, that it is so uncertain and indefinite as to affect the validity of the mortgage. It can, doubtless, be rendered certain by a proper description of the lands intended to be conveyed. The same certainty of description ought to be observed in a bill for foreclosure, as in a complaint in a real action at law, and in the judgment rendered thereon. In such action, reasonable certainty of description is necessary. — Sturdevant v. Murrell, 8 Porter, 317; Bennett v. Morris, 9 Porter, 171. The boundaries of the land on the north, south and west are given, but not on the east, and no fact is stated from which the eastern boundary can be ascertained. If the quantity of the land was stated, the eastern boundary could, perhaps, be located. But that is not specified — it is stated as about (meaning more or less than ) one thousand and fifty acres ; indicating that a particular tract of land, without regard to quantity, was in the contemplation of the pleader, and of the mortgagor and mortgagee. — Winston v. Browning, 61 Ala. 80. The defect in the bill in this respect compelling a reversal of the decree, it is not necessary to notice the other matters presented by the assignment (of errors.

Beversed and remanded.