Busbee v. Thomas

• Decision Date: 18 January 1912
• Citation: 57 So. 587,175 Ala. 423
• Parties: BUSBEE ET AL. v. THOMAS ET AL.
• Court: Alabama Supreme Court

57 So. 587

175 Ala. 423

BUSBEE ET AL. v. THOMAS ET AL.

Supreme Court of Alabama

January 18, 1912

Appeal from Circuit Court, Coosa County; H. P. Merritt, Special Judge.

Ejectment by E. W. Thomas and others, as trustees, against Lafayette L Busbee and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The oral charge of the court, excepted to, is as follows: "I charged you as a matter of law this morning that the boundaries govern, and that is still my charge to you. I simply reiterate that, where a deed sets out the boundaries and courses and distances, you must follow the boundaries and even though it may name a certain number of acres, and according to the boundaries there will be a larger number of acres than named, the boundaries control."

The following charges were refused to defendant: (2) "I charge you that, unless you are reasonably satisfied from all the evidence in this case that the original trustees under the deed from Bradford and wife to said trustees laid off the land conveyed or attempted to be conveyed therein, and established the stakes therein specified, then the instrument is void, and cannot serve as a muniment of title." (3) "I charge you that, under the deed to Bradford and wife to the school trustees, it was necessary for the said trustees to lay off same within a reasonable time, and if they fail to do so, and have never done so, then the deed is void for uncertainty." (6) "I charge you that plaintiff cannot recover more than 10 acres of land under this deed of Bradford and wife to the trustees." (7) "I charge you that unless you are reasonably satisfied from all the evidence in this case, that the original trustee under the deed from Bradford and wife, or their successors in office, laid off the land as directed by said deed, then you must find for the defendant." (8) "I charge you no survey by subsequent township trustees or district trustees could put into operation the deed of Bradford and wife to the school trustees; but, for the deed to have been made operative, it was necessary for the trustees of the property under the deed to lay it off, and, if they have not done so you should find the issue in favor of the defendant." (9) "I charge you that the plaintiff cannot recover, unless you are reasonably satisfied from all the evidence that the original trustees under the deed from Bradford and wife laid off the land described in said deed, and that the tract as laid off contained not exceeding ten acres." (10) "I charge you that the courses and distances are not sufficiently described in said deed, so as to make the deed sufficiently certain." (11) "I charge you that the plaintiff cannot recover in this action, unless you are reasonably satisfied from all the evidence that the original trustees under the deed from Bradford and wife to James A. Kelly and others laid off the lands described in said deed." (12) "I charge you that if you are reasonably satisfied, from all the evidence in this case, that it was the intention of Bradford and wife to convey only 10 acres to the school trustees, then plaintiff cannot recover the full amount of acres sued for."

Riddle, Ellis, Riddle & Pruett, for appellants.

Whitson & Harrison, for appellees.

SOMERVILLE J.

The appellees sued the appellants in ejectment, and had verdict and judgment for the land sued for.

The issue in the trial court and on this appeal hinges upon the proper interpretation of the deed offered by plaintiffs in support of their title. This deed was executed in 1853 by the owner, one Bradford, to one Kelly and others, as trustees, principally for the maintenance of a school, and in part for other charitable uses. The plaintiffs constitute the present board of trustees, claiming in succession to those originally named in the grant.

The deed conveys "the following described lot of land lying and being in the county of Coosa and state of Alabama, and being a part of section eight in township twenty-three and range twenty east, in the Tallapoosa land district, containing and bounded as follows; to wit: Beginning at the line of section eight where said line strikes Socapatoy creek; thence down the north bank of said creek to a stake; thence due north to a stake; thence east to a stake in said section line; thence south with said line to the beginning. Said lines to be run so as to contain ten acres, and the academy, and said trustees are to have said ten acres run so it contains the academy and the Baptist Church and ten acres of land as they want it."

The evidence shows with reasonable certainty that at the time of the grant in question an academy building stood near the southwest corner of the tract sued for, and a Baptist Church near the northeast corner; that for about 50 years past the tract has been commonly known as the "Bradford Academy Lot," and its boundaries and corners have been identified and well known to a number of people living in the neighborhood; that the entire tract contains about 17 acres; and that rectangular lines running from the eastern and southern boundaries (as fixed by the deed), so as to barely include the academy and church buildings as they originally stood, would inclose about 13 acres.

Defendants objected to the introduction of the Bradford deed, on the grounds (1) that it was void for uncertainty of description; (2) because it vested in the trustees merely a power to lay off 10 acres, as they pleased, so as to include the academy and church, and this power has never been executed; and (3) because it was not shown that plaintiffs are the persons who can recover under the deed.

The rules of interpretation which declare the primacy and effect of variant modes of description in deeds have been too often stated to permit of repetition here. It is obvious that the deed before us fully describes the tract of land intended to be conveyed by monuments, courses, and boundaries, located with reference to a beginning point that is fixed and certain, by means of which the entire tract can, or could originally, be definitely pointed out. It is true that distances are not specified; but the termini of the several boundaries, which are, of course, the corners of the tract, are fixed as to the western corners by stakes on the specified courses, and as to the eastern corners by the intersection of the courses with a known section line. The deed was therefore prima facie certain as to the land conveyed, and clearly admissible in evidence.

It, of course, devolved on the plaintiffs to show the identity of the tract thus described with the tract sued for; and in doing this it was necessary by competent evidence to locate the monuments and boundaries set forth in the deed. As to this, the only points of...