Price v. Bell, 91 Ala. 180

Price v. Bell

91 Ala. 180 | Ala. | 1890

STONE, C. J.

We think the proof in this case sufficiently establishes the following propositions of fact: Firsts that *181Alexander McTavisli, by oral contract, agreed to sell lo Mol lie Bell one acre ofland, for forty dollars agreed to be paid; that he pointed out to her the acre he sold her, and marked it by stakes and measurements, sufficiently to identify it. Necotul, that as part of the contract of purchase, she paid part of the purchase-money, and was let into possession. Third, that she erected a dwelling and fence on the premises, and has ever since occupied the lot by herself, and by those holding in her right. Fourth, that during the life of McTavisli she paid him the entire purchase-money. These facts, which we hold are sufficiently proved, take this contract without the annulling influence oi the statute of frauds. — Code of 188(5, S 17152, subd. 5.

There is attached to the amended bill, as an'exhibit, a plat or survey of the acre, which, if correct, will enable a surveyor to locate and identify it, and a. draughtsman to describe it. The amended bill attempts to describe the acre, but the description contains an error, which must work a reversal of this case ; for it fails to describe the lánd sued for, and, hence, produces a variance between the allegations and pfoof. Jt fails to describe the land on which the dwelling and fence were erected. The error consists in misplacing the initial point — the southwest corner of the acre — on the west.line of the railroad’s right of way, instead of the east line, the true .beginning point. This misplaces the acre by, at'least, the width of the railroad's right of way. The following would be an accurate description, according to the surveyor’s plat: From a point on the east line of the right of way of the Mobile & Ohio Eailroad, at its intersection with the north line of Alley No. 2 of the Dade survey, north 45°, 50’ west, along said east line, eight 51-100 chains, to the beginning point of survey, being the south-west corner of the acre. The remaining description is correctly set forth in the amended bill.

And there is an entire absence of testimony that the description of the acre given in the surveyor’s plat and accompanying note, describes correctly and fixes the xihisoi the acre ofland sued for. The unsworn plat and notes of the surveyor are insufficient for this.

It is contended for appellant that he is'a bona fide purchaser of the tract of land, including the acre, without notice of complainant’s claim, and that the bill should be dismissed on that account. A sufficient answer to this, without noticing any other, is found in the fact that, at the time of Brice’s purchase, the lot in controversy was inclosed by a fence, and had a dwelling on it, and that complainant, by herself or tenant, was in actual occupancy of it. This was enough to put him on in*182quiry, which would have led to information of the nature of her claim.—Meyer v. Mitchell, 75 Ala. 475; Headley v. Bell, 84 Ala. 346; Anthe v. Heide, 85 Ala. 236.

Reversed and remanded.