Kyle v. Rhodes, 71 Miss. 487

71 Miss. 487 | Miss. | 1893

Woods, J.,

delivered the opinion of the court.

The action of the court below in overruling the demurrer of appellants to the original bill was not error. The written memorandum signed by appellants, whereby they agreed to convey to appellee the' forty-seven acres of land involved in this litigation, is not void for uncertainty. There is no patent defect on the face of the writing. It is not an agreement to couvey any land described by legal subdivisions, but it is a description of the premises agreed to be conveyed by a general reference to designations by which the boundaries of the lot may be made practically certain. It is a general rule that where parcels of real estate are conveyed by 'well-known designation, such conveyances are valid, though resort to extrinsic evidence may be necessary to show what was accurately included in the general description employed in the conveyance. In the case at bar, the memorandum in writing describes the premises by reference to extraneous facts, and, in such instances, it is proper to resort to extrinsic evidence to ascertain those facts, in order to show what was embraced in the general designations of the land which were employed by the grantor. Eggleston v. Watson, 53 Miss., 339; Stewart v. Gage, 59 Ib., 558. That resort to the extrinsic evidence referred to in the written undertaking to convey by these appellants will accurately ascertain what premises were intended, we can have no doubt.

The rule which requires the evidence of two witnesses, or •one witness and corroborating circumstances, to overthrow an answer, was not disregarded nor impinged upon by the decree of the chancery court. The bill of complaint avers a certain consideration for the agreement of the appellants to convey the forty-seven acres. This the answer denies, and sots up another consideration. The rule cited was applicable, in the peculiar attitude of the pleadings and affidavits, to them, and this rule was complied with when T. N. Rhodes, a witness for appellee, perfectly supports the averments of the hill on this point, and finds his evidence corroborated by more than one circumstance, especially by the evidence of Owens. From the evidence of this witness it appears that, several months after the written agreement of appellants to convey had been signed and delivered, and some months after the lands embraced in the Miller lease should have been delivered up to appellants (if their version of the transaction was the correct one), and when they had not been so delivered up by Rhodes, conversations were had between Kyle and T. N. Rhodes, representing the appellee, looking to the execution of a quitclaim deed in pursuance of the written agreement to convey, and without any hint from Kyle that the quitclaim deed would not be made, because of the alleged failure of Rhodes to assign the unexpired term of the Miller lease. There are other slightly corroborating circumstances to be found in the record before us, but we deem it unnecessary to refer to them in detail.

The injunction was not improvidently granted. The appellee had been for some time before the appellants acquired title from Busby in the possession and cultivation of the premises in controversy, under a parol agreement of sale which existed between Busby and herself, and after the acquisition of title by the appellants, appellee remained in the use and occupation of the same under the written agreement of the appellants to convey. While thus situated, her possession is forcibly invaded by appellants, and the denudation of the land of its timber is actually vigorously begun by appellants. Was the appellee required to supinely sit down and see the premises laid waste, pending determination of the question of her light to compel conveyance by appellants ? Or, might she not properly invoke the aid of a court of equity to restrain the onslaught of her adversaries during the time her appeal to the court for a settlement of the controversy was pending? The answer is not doubtful, and the injunction was properly granted.

"We concur with the chancery court in its conclusion as to the facts on the main contention, and the decree is

Affirmed.