74 Ala. 382 | Ala. | 1883
— The present action is one of ejectment, under the statute, the land claimed being described in the complaint as “Lot No. 2, of square No. 8, in the town of Rutledge,” in the county of Crenshaw, and the State of Alabama. The deeds of conveyance introduced in support of the plaintiff’s
It is obvious that, upon the face of the deed, there is no ambiguity, or repugnancy of description. The dimensions of the entire lot appear to be only a rectangular area, of twenty feet by one hundred and ten feet. There is an ambiguity, however, or rather a repugnancy, which is made to appear by parol evidence introduced upon the trial, in aid of the true identification of the land. This evidence shows, without conflict, that lot number 2, as described in the complaint, is thirty feet in front, instead of twenty feet as stated in the deed, and runs back one hundred and ten feet as described; that the quantity or area intended to be sold, as shown by the actual measurement of the parties, was only txoenty feet front on the east side ; and that the plaintiff was placed in actual possession of this parcel, and had so continued for about four years prior to commencing the present action. The defendant’s stable covered in part the ten feet front on the west side of the lot, running back its full depth, and defendant had remained in actual possession of this parcel since the day of sale, claiming ownership of it as he had for a long time before. It was objected at the trial, and is here insisted, that this parol evidence was inadmissible to explain the ambiguity disclosed; and that the area of the entire lot, which was thirty feet front, could not be shown to be limited or controlled by the latter clause of description, stated in the deed to be twenty feet.
We are of opinion that the court erred in excluding this evidence. The designation of the lot in controversy as “ lot number 2” was a general designation, sufficiently certain only on the principle, that it could be rendered certain by parol identification. Without more, it could not be known what were the real dimensions of the lot. The designation by metes or distances was a particular description. The ruléis, that where a general and a particular description are both used in the same deed, in reference to the same land, and they both can not stand together, because of repugnancy, the particular description will control, and the general one be rejected as falsa demonstratio.- — Sedg. & Wait’s Trial Land Titles, § 458 ; Inge v. Garrett, 38 Ind. 96; 1 Greenl. Ev. (Redf. Ed.), § 301, note 2.
It is true, that the particular written description does not show whether the twenty feet front of lot number two, which was sold to plaintiff by defendant, was on the east or west side of the lot. But this ambiguity was relieved by the parol proof that the plaintiff was placed in possession of the twenty feet
The deed was properly admitted in evidence; the acknowledgment before the circuit clerk, as shown by his certificate, dispensed with the necessity of attesting witnesses, although one of the grantors could not write, and made her signature by mark only'.— Weil v. Pope, 53 Ala. 585; Code, 1876, § 2146.
Eor the error of the court in giving the general charge requested by the plaintiff, and in refusing to give the charge requested by defendant, as well as the exclusion of the parol evidence offered by defendant, the judgment must be reversed, and the cause remanded.
