Bottoms v. Dykes

• Decision Date: 13 February 1894
• Citation: 14 So. 874,102 Ala. 582
• Parties: BOTTOMS v. DYKES.
• Court: Alabama Supreme Court

14 So. 874

102 Ala. 582

BOTTOMS v. DYKES.

Supreme Court of Alabama

February 13, 1894

Appeal from chancery court, Dale county; Jere N. Williams Chancellor.

Action by James Bottoms against James E. Dykes. From the judgment partially in favor of defendant, plaintiff appeals. Reversed.

Borders & Carmichael, for appellant.

H. H Blackman, for appellee.

HARALSON J.

This case was here on a former appeal. 13 So. 582. The bill was filed to have a vendor's lien on land declared and enforced. The entire defense was to have an abatement of the purchase money, to the extent of the value of 11 acres of the land sold, 5 acres in one section, 29, and 6 acres in another,-section 28. The facts on this appeal are not materially different from those presented on the former, and on which, this court decided all that is now, on the present record, presented for review. We then held, that as for the five acres in section 29, the respondent was entitled to an abatement of the purchase money, to the extent of its value and, that as to the six acres in section 28, the deed of the complainant to the respondent was void for uncertainty of description; that it simply described it as "a portion of the N.W. 1/4 of N.W. 1/4, and a part of S.W. 1/4 of N.W 1/4 of Sec. 28" in township 17, range 25, without specifying any number of acres; that the particular parts of said section 28 intended to be sold could not be ascertained; that they had no landmarks, which would enable a surveyor to find the land; and that it did not come within the maxim, "Id certum est, quod certum reddi." Dykes v. Bottoms (Ala.) 13 So. 582; Black v. Railroad Co., 93 Ala. 109, 9 So. 537; Railroad Co. v. Boykin, 76 Ala. 560; Wilkinson v. Roper, 74 Ala. 141.

When the cause, on reversal, returned to the chancery court, the court allowed the respondent to file an amended answer in the nature of a cross bill, in which he undertook to identify the particular six acres of land in said section 28, which he understood to be conveyed to him by said deed, and thereby to make an attempt to make that certain, which we held could not be done. The learned chancellor evidently overlooked, for the time, the fact, that the respondent did not seek a cancellation of the deed and a return of the purchase money, or a reformation of the deed, but that his purpose was, to hold the land under a deed recognized by him to be valid, and claim simply an abatement of the...