47 Miss. 353 | Miss. | 1872
W. A. Peacher and Mary E. Peacher brought ejectment against Isydore Strauss, Henry Strauss and W. W. Wishart, to recover a parcel of land particularly described in the declaration, in which it is averred that Mary E. Peacher was, before her marriage with W. A.
The application for a new trial falls so far short of showing diligence or other good cause, that, independent of the question of discretion, our judgment approves the refusal to grant the motion. Upon the showing made,
The material portions of the deed from Isbell to “Hix” are these: “This indenture, made and entered into this 30th day of January, A. D. 1836, between James. C. Isbell, of the county of Hinds and state-of Mississippi, of the one part, and Josiah Hix, of the same county and state,, of the other part, witnesseth: that said James C., for and in consideration of the sum of four hundred dollars, to him in hand paid, and secured to be paid by the said Hix, he, the said James C., hath this day granted, bargained and sold, and do by these presents grant, bargain and sell unto him, the said Hix, the following described lot or parcel of ground, situate, lying and being in the town of Jackson, and known and described upon the plan of said town as lot No. 5, south, containing two acres.” * * * “To have and to hold,” etc., * * * with covenants of warranty. Signed, sealed and delivered in the presence of Isaac Johnson and Merrett Hix, as witnesses thereto. We observe that the name of the grantee is spelled therein “ Hix,” whereas, in the declaration and other proceedings, it is spelled “Hicks.” To the introduction of this deed as evidence objection was made and sustained, because of the omission therefrom of the county and state as a part of the description of the land conveyed; or, in other Avoids, on the ground of uncertainty in the description, the town, but not the county and state, where the premises are located, being designated.
In this connection, the plaintiff offered to prove by James C. Isbell, “ that he purchased said lot No. 5, south, containing two acres of land, at the first public sale of town lots in the city of Jackson, Miss., and paid for the same according to the terms of said sale, and received a certificate of purchase for the same according to law, which he retained for a long number of years; that said certificate is now lost or destroyed;
Can the absence, from the description of the land of the county and state, as appears on inspection of the deed, be supplied by parol? Before discussing the law on this subject, it is proper to determine the facts upon which we are to base our judgment. It is, perhaps, significant, that plaintiffs did not offer to prove that Isbell continued to “occupy” these lots, though he claimed to “own” them to the date of the deed to Hicks. It was not pretended that Hicks, or those claiming through him, ever entered under the conveyance, or were in any way ever in possession of the premises. The plain inference is, that Isbell had ceased to occupy these lots prior to, and was not in actual possession at the date of the conveyance; that he did not deliver, nor did Hicks take possession under the deed; and that the plaintiffs have not at any time had possession of the lands sought to be recovered from defendants in this action. This point, then, is embraced in these facts: I. conveyed by deed a parcel of land, described as “lot No. 5, south, in the town of Jackson,” without naming the county or state; without reference to prior occupancy by him; without reference to any other deed or to a certificate; without giving any local boundaries, such as adjoining residents or other description peculiar to the locality, by which the lots could be located ; and without delivery of possession, or other means of location and identification on its face than the reference to the map of the town or survey. The parties to the deed, however, are described as residents of Hinds county, state of Mississippi; and it may be assumed that Isbell was in possession of the lot in controversy and made improvements thereon prior to 1836. But the map was not produced nor referred to on the trial, as far as we can see, nor, as we have seen, was there any intelligent statement with reference to the records per
The question in the case at bar is, in this state, substantially res adjudicata. In Hanna v. Renfro et al., 32
Steinbach v. Stewart, supra, to which we are referred by counsel for defendants in error, belongs to this class
We have said we should not undertake to determine whether the defect in the deed before us falls within the definition and rules of a latent or patent ambiguity, often, as the authorities show, a delicate and difficult task. We may observe, however, that according to the ordinary signification of the former, and as defined by the authorities, a latent ambiguity is raised by the proof of extrinsic facts, and by the same kind of proof, it may be explained. 2 Phill. Ev. (Cow & Hill’s notes), 747 ; 1 Sug. on Yend. 181; 15 M. & W. 562; 5 Bing., N. C. 425; 3 Gray, 72; 3 Poster 46 ; 8 How. (U. S.) 274; 3 N. H. 60 ; 8 Bing. 244; 15 N. H. 317; 6 T. R. 671; Bouv. Law Die., title, Ambiguity ; Burrill’s Law Die., title, Ambiguity; 2 Sug. on Yend. 152; 2 Pars, on Cont., 557, and note; 6 S. & M. 294; 7 ib. Ill; 1 How. (Miss.) 591, etc.
According to Lord Bacon, the learned author of these rules, patent ambiguities are “never holpen by averment;” but Kent says, that rule is too general; vol. 2, p. 747; and is, not of universal application. Broom’s
A further, and, for the present purpose, final, if not conclusive argument in support of the view here presented, is furnished in the answer to the question, “when does the law stop in its endeavor to remove uncertainty in written instruments?” The answer is, “not until it is found that the contract must be set aside, and another one substituted, before certainty can be attained. In other words, if the contract which the parties have made is incurably uncertain, the law will not, or rather cannot, enforce it; and will not, on the pretense of enforcing it, set up a different but valid one in its stead.” And “the law will not pronounce a contract incurably uncertain, and therefore null, until it has cast upon it all the light to be gathered, either from a collation of all the words used, or from all contemporaneous facts which extrinsic testimony establishes.” Pars, on Cont. 561.
We conclude, upon general principles, as enunciated by modern authorities, and sustained by sound reason, that extrinsic evidence of the county and state, as proposed by the plaintiffs on the trial, ought to have be n admitted, in aid of the description of the land mentioned in the deed, and claimed in the suit, in view, apparently, of other means of local identification.
Wherefore the judgment is reversed and the cause remanded.