94 Ala. 236 | Ala. | 1891
— The original bill was filed for the enforcement of a vendor’s lien, for an unpaid balance of purchase-money on a sale of land by the complainant to the defendant. The defendant made his answer also a cross-bill, and charged therein that the vendor had no title to a considerable part of the land described in his deed, and that in consequence of this the defendant acquired by the conveyance less land by several hundred acres than he supposed he was getting by the purchase; and he claimed that he was entitled to an abatement of the purchase-money because of the alleged deficiency in the quantity of the land. The decree was on a motion to dismiss the original bill as amended, for want of equity, on a similar motion as to the cross-bill, and on demurrers thereto.
The construction of the deed above referred to is the principal question in the case. That deed was executed by the-complainant and his wife. They “grant, bargain, sell and convey” certain lands, which are designated according to the-government survey. They “convey by quit-claim only” certain other lands, which are designated in the same way. Thus far the deed follows the ordinary forms of such conveyances. It concludes, however, with this clause: “The intention of the grantors in this deed is to convey to said B. B. Kyle all their right, title, interest and claim in and to the lands heretofore belonging to Thomas Garrett, now deceased, and lying-in said sections 13, 16, 18, 19, 21. Should the description above be incorrect, the grantors will, at any time when called: on, correct the same.” In the original bill, as amended, all the lands in the sections mentioned which formerly belonged to-Thomas Garrett, now deceased, are particularly designated. It appears from the averments on this subject th'at all those-
The contention of the respondent is, that he is entitled in any event to the land particularly described according to the government survey, and to the number of acres called for by such description. The terms of the deed do not support this contention. It is true that the words “grant,” “bargain,” “sell,” or either of them, as used in the deed, must be construed, unless it otherwise clearly appears from the conveyance, an express covenant that the grantor was seized of an indefeasible estate in fee simple in the lands to which they refer. — Code, § 1839; Swann v. Gaston, 87 Ala. 569. But these words must be Construed in connection with the other language used in the deed, so as to give effect to the intention of the parties as expressed in the instrument. — Derrick v. Brown, 66 Ala. 162. If it clearly appears from the deed, taken as a whole, that the words of conveyance and warranty were intended to apply only to such lands as had formerly belonged to Thomas Garrett, then the statutory warranty is not to be arbitrarily implied, as covering lands which never belonged to Thomas Garrett. The clause of the deed last above quoted is decisive of the meaning of the instrument. It is plain that the particular description according to the ■government survey is controlled by the express provision to the effect that only such lands in the sections named as had
It can not be affirmed, however, that the cross-bill could not be so amended as to disclose a case entitling the complainant therein to equitable relief. It was error to dismiss it in vacation without affording an opportunity to amend. — 3 Brick. Dig.'379, § 197. For this error the decree must be reversed.
[Reversed and remanded.