13 Ala. 31 | Ala. | 1848
We can conceive of no objection to the admission of the evidence to show that Sheppard S. Johnson, one of the grantees in the patent, was named Sheppard Spencer Johnson, and that he is the same person who executed the deed under which the plaintiff claims, by the name of Spencer S. Johnson. This testimony does not contradict ■either the patent or the deed. It shows nothing more than a transposition of the first and middle name — explains an ambiguity, if indeed it be one, which at most is latent — removes a seeming discrepancy — makes the deed harmonize with the patent, and thus traces to the plaintiff a complete title from the United States. In the absence of proof, we are by no means sure that the similarity of the names is not such, as to warrant the inference that they were intended to indicate the same individual; but as this question does not necessarily arise, we will not consider it. See 2 H. & McH. Rep. 155; 2 H. & Johns. Rep. 53, 366; 3 Id. 469; 1 H. & Gill’s Rep. 441.
The law does not require any technical or precise form of
In Walsh v. Ringer, 2 Ham. Rep. 327, it was decided that the words “ seventy acres of land, being and lying in the south-west corner of the south-west quarter of section 14, township 12, range 5, of land sold at L,” are a good description in a deed, and include the land in an equal square. And a deed which professed to convey a moiety of a tract of land, but describes the part conveyed by metes and bounds, conveys only such part as is within the limits designated, although it may be less than a moiety. 1 H. & Johns. Rep. 167. See 1 Ala. Rep. 415, 320.
If the deed under which the defendant claims had conveyed the south half of the half quarter section, and designated the number of acres it contained, the designation of quantity would not restrict the general description; for the half of the tract would be ascertained by reference to the whole, and would pass, though the number of acres was more or less than are stated. This conclusion is the result of reason, and is fully supported by several of the cases cited. But it is only by construction the words “ south part” can be intended to mean the soicth half, when unexplained by other words restricting or enlarging their meaning.- In themselves, and in the absence of every thing else, they may be regarded as descriptive of the land conveyed; and upon the principle, that in a case of doubt and uncertainty the deed shall be construed most strongly against the grantor, and that such an interpretation shall be placed on the instrument as will make it operative ut res magis valeat quam pereat. But here the additional words as to quantity must be looked to as furnishing a controlling guide in the construction of the deed, and whether they are taken as a part of the description of the premises, or as a covenant that the land contains so many aeres, is altogether unimportant. Whether considered in one sense or the other, they show how much of the south part is conveyed by the deed to the plaintiff. See 1 Ired. Rep. 252, 283; 2 Id. 170; 4 Dev. & Bat. Rep. 133, 241.
The deed must be held to speak its own meaning, and cannot be limited, enlarged or explained by parol evidence, so as to make it operative otherwise than its terms indicate.— 4 Wend. Rep. 369; 13 Pick. Rep. 121; 4 Day’s Rep. 395; 3 McC. Rep. 269; 6 N. Hamp. Rep. 205; 12 Johns. Rep. 77, 427, 488; 11 Wend. Rep. 422 ; 3 Call’s Rep. 194; 3 H. & Munf. Rep. 399; 2 Leigh’s Rep. 630; 7 Id. 632; 1 How. Rep. (Miss.) 591; Walk. Rep. (Miss.) 115; Freem. Ch. Rep. (Miss.) 53; 4 Stewt. & P. Rep. 96; 2 Porter’s Rep. 29; 5 Id. 498; 1 Ala. Rep. N. S. 161; 2 Id. 280; N. Car. T. Rep. 34; 4 Hawks’ Rep. 64; Monr. Rep, 63; 6 Id. 182; 2 H. & McH. Rep. 57; 3 Id. 437; 2 H. & Johns. R. 498; 3 Id. 329; 5 Id. 155; 6 Id. 24, 435; 1 H. & Gill’s Rep. 172, 438. These citations very satisfactorily show, that while in some cases it is allowable to prove by parol, matters which are extrinsic of, and not concluded by the deed, it is not admissible thus to contradict the description of the land it purports to convey; so as to give to the deed an operation different from what its terms import. If it was the intention of the parties, that the deed should have conveyed a moiety of the half quarter section, although it contained more than the estimated quantity, upon satisfactory proof being made of this fact, it is competent for a court of chancery so to reform the deed as to give effect to the intention. 3 S. & Mar. Rep. 67 ; 7 Id. 340; 1 Ala. Rep. N. S. 161; 8 Id. 345.
In respect to boundaries, it is said, if they are ancient they
In some of the cases, the declarations of deceased persons have been rejected because they were made post litem mo-tam, and it was held that it is indispensable to their admissibility that they should be made ante lilem. It is said, in all cases where these declarations have been received, it was first made to appear that the declarant was dead; and that several cases have expressly decided that this is an essential condition. 3 McC. Rep. 258. To show that he is beyond the reach of the process of the court is not enough. 2 N. Car. L. Rep. 635; 10 Serg. & R. Rep. 275; 1. H. & McH. Rep. 531. But a distinction, it is said, must be observed as to proving declarant’s death, between particular declarations coming from individuals and general reputation. In the former case, death must be proved. In the latter, it is never required. 2 Phil. Ev. C. & H’s Notes, 628 to 638.
It is perfectly clear, the declaration of Murphy was properly rejected. There was no res gestae to which it was inferrable — nor does it tend to establish a general reputation; but merely the opinion of the declarant, as to the dividing line of the section, or an assertion by him that it was run by a surveyor. Placing out of view every other objection to this testimony, its exclusion was warranted by the failure to show that the evidence of Murphy could not have been obtained, either by his personal attendance in court, or by deposition.
In Hollinger v. Smith, 4 Ala. Rep. 367, we held, that this statute gives a cumulative remedy, and does not repeal the common law, which maintains, that where the defendant in an ejectment, or similar action, is in possession under color of title, and is not a mere trespasser, he is entitled to recover the value of the permanent improvements by way of deduction pro tanto from the mesne profits.
Several of the States have enacted laws similar to our own in principle ; how far they differ in terms we are not informed, as we have not compared them. In Tennessee it has been held, that equity enjoins the successful claimant from taking possession of land until by the rents and profits the improvements are paid for, or they are otherwise compensated ; and that the general principles laid down in the statutes of that State of 1796, and 1805, are perfectly coincident with the relief previously established by courts of equity. Cooke’s Rep. 294. Further, the nature of th.e claim to be exhibited by a person claiming the value of improvements, should be such as would protect him under the statute of limitations. 2 Tenn. Rep. 341, 392. But under the earlier Tennessee act, which makes seven years peaceable possession a bar, it has been held, that although a regular title in form is not necessary, a mere naked possession will not be sufficient; but the defendant seeking to avail himself of his possession, must show color of title. Cooke’s Rep. 356. Possession of land in virtue of a bond for seven years, is not sufficient to protect a party under the statute of limitations. 2 Tenn. Rep. 394. Color of title is where the possessor has a conveyance of some sort by deed or will, or inheritance which he may believe to be a title. 4 Hayw.
It has been decided, under a statute of Kentucky, that improvements made by one who occupies land mala fide will not be respected, where he is ousted by the party in whom the title is vested. 2 Bibb’s Rep. 44. But a Sorar» j^cie possessor, is entitled to all necessary, lasting, and valuable improvements made by himself or a stranger, on the premises, deducting rents and deterioration of soil. 2 Bibb’s Rep. 45; 3 Marsh. Rep. 202, 388; 4 Bibb’s Rep. 199; 4 Litt. Rep.
“An actual, continued, visible, notorious, distinct and hostile possesion,” is adverse within the statutes of limitation of most, if not all the States, as well as some of the English enactments; but we should hesitate to lay these down as the only essentials of “ adverse possession” within the meaning of the act of 1836. The case before us does not, however, make it necessary to define with particularity the character of the possession contemplated by the statute: It was certainly quite enough for the defendant to have shown that his occupancy was bona fide under color of title. His possession could be vindicated as we have seen, by proof of entry under a mere verbal contract of sale, or by a title at law or in equity, either real or apparent; and some of the cases maintain, that a possession under an honest impression that the party is entitled to the premises, and without notice of a conflicting claim, gives him a right to demand compensation for permanent and valuable improvements made thereon. It may perhaps be' inferred from the deed under'which the de
What we have said will indicate that, that the circuit court took á view of the defendant’s rights altogether too restricted ; but should have admitted parol evidence of the declarations of the plaintiff, that he had sold one half the tract, ■and charged the jury, as we have intimated, upon the evidence before them. For the error in the ruling on this point, the judgment is reversed, and the cause remanded.
