Brannan v. Henry

• Decision Date: 09 February 1905
• Citation: 39 So. 92,142 Ala. 698
• Parties: BRANNAN v. HENRY.
• Court: Alabama Supreme Court

39 So. 92

142 Ala. 698

BRANNAN v. HENRY.

Supreme Court of Alabama

February 9, 1905

Appeal from Circuit Court, Mobile County; William S. Anderson Judge.

Action by Mary Henry against Lewis I. Brannan. From a judgment for plaintiff, defendant appeals. Reversed.

McIntosh & Rich, for appellant.

Ervin &amp McAleer, for appellee.

DENSON J.

This is an action of statutory ejectment. While other lands were described in the complaint, by the proceedings had in the court below, and the judgment rendered there in favor of the plaintiff, the questions presented for consideration by this appeal relate only to that part of the land described in the complaint, as the N.E. 1/4 of section 36, township 2 S range 4 W., situated in Mobile county, Ala. The plaintiff offered in evidence a patent to the lands above described, issued by the state of Alabama to Thomas Henry on the 2d day of January, 1872, and then offered in evidence a certified copy of the last will and testament of Thomas Henry, deceased, devising the lands to plaintiff, together with the certificate of the judge of probate of Mobile county, showing the probate and record of said will. The foregoing was all of the plaintiff's evidence. The defense attempted by the defendant was 10 years' adverse possession.

The defendant offered in evidence what purported to be a tax deed, made to defendant by Cyrus D. Hogue, auditor, on the 3d day of April, 1890. The lands contained in said deed are described as follows, to wit: N.E. 1/4 of section 36, township 2, range 4, lying and being situate in Mobile County, Ala. The deed was offered merely for the purpose of showing color of title. The objection made by plaintiff to the deed was based on the ground that the deed was absolutely void and not self-proving. The court sustained the objection, and the defendant duly excepted to the ruling of the court. It must be conceded that the tax deed offered in evidence is not effective as a muniment of title, nor was it depended upon by the defendant as such. The insistence of the appellant is that a deed may be void, and yet be admissible in evidence to show color of title. This insistence is amply supported by authority, and many of the deeds which have been held by this court to operate as color of title were void tax deeds. Stovall v. Fowler, 72 Ala. 77; Childress v. Calloway, 76 Ala. 128; Hughes v. Anderson, 79 Ala. 209; Florence Land Co. v. Warren, 91 Ala. 533, 9 So. 384; Gist v. Beaumont, 104 Ala. 347, 16 So. 20; Zundel v. Baldwin, 114 Ala. 328, 21 So. 420; Reddick et al. v. Long, 124 Ala. 260, 27 So. 402; Dorlan v. Westervitch, 37 So. 382. The above rule, it seems, is subject to this qualification: that, if the deed offered is void because of the uncertain and indefinite description of the land conveyed, such a deed would not convey color of title, and possession under it would be limited to "possessio pedis." This exception is supported by reason and authority. Black v. Tennessee Coal, Iron & Railroad Co., 93 Ala. 109, 9 So. 537; L. & N. R. R. Co. v. Boykin, 76 Ala. 566. It has been observed that the only objections made to the deed were that it was absolutely void and that it was not self-proving. Where a paper writing is offered to show color of title, it is not necessary that its execution should be proved. Gist v. Beaumont, 104 Ala. 347, 16 So. 20; Ala. State Land Co. v. Kyle, 99 Ala. 474, 13 So. 43. It may be true that if, at the time the deed was offered, there had been an objection that there was not, at the time the deed was offered, any proof of actual possession under the deed, the court should have sustained it; but no such objection appears to have been made.

Is the deed void because of uncertainty and indefiniteness in the description of the lands, so as to bring it within the qualification above stated to the rule bearing upon the admissibility of a void tax deed as color of title? The appellee contends that it is, and that there can, for this reason, be no proper application of the rule, "Id certum est quod certum reddi potest." "This contention raises the question of patent ambiguity, which the authorities say can neither be explained nor made certain by parol proof." In the case of Chambers v. Ringstaff, 69 Ala. 140, Judge Stone, discussing this question, said: "The distinction between latent and patent ambiguity has long existed, and the general rule applicable to each class of cases should not be disturbed. When a contract or conveyance, on its face, or aided by judicial knowledge, equally describes two or more persons, things, etc., this is patent ambiguity, or ambiguity apparent. In such case the rule is clear, and we do not wish to depart from it, that parol proof of what was intended by the contracting parties will not be received. Latent ambiguity exists when, on the face of the paper, no doubt or uncertainty exists, but by proof aliunde the language is shown to be alike applicable to two or more persons, things, etc. When this is the case, the uncertainty or ambiguity may be explained or cleared up by the same character of proof as that by which it is made to appear." The conveyance which the learned judge had under construction in that case described the land only by section, township, and range. It called for parts of sections 7 and 17 in township 12, range 18; nothing being said of the state, county, land district, or government survey in which the lands were situated. With reference to the description, in further discussion of the ambiguity, Judge Stone said: "Now, we judicially know that there is but one tract of land in Alabama which corresponds with this description. There is but one range 18 in the state, and that lies east of the basis meridian of St. Stephens. There is but one township 12 that bisects range 18, and that is north of the base of that survey." Under the above facts and statement of the law, it was held permissible to adduce proof that the grantors, at the time the conveyance was executed, owned and resided on lands in Montgomery county, Ala., known by the same numbers as those employed in the conveyance.

We judicially know that there is no range 4 east in Mobile county, and we judicially...