Calton v. Lewis
| Decision Date | 28 May 1889 |
| Docket Number | 13,637 |
| Citation | 21 N.E. 475,119 Ind. 181 |
| Parties | Calton et al. v. Lewis et al |
| Court | Indiana Supreme Court |
From the Warren Circuit Court.
The judgment is reversed, with costs, with directions to sustain the appellants' motion for a new trial.
J. W Sutton and W. L. Rabourn, for appellants.
J McCabe and E. F. McCabe, for appellees.
On the 13th day of March, 1884, Lewis and wife conveyed, by a deed containing covenants of general warranty, seven hundred and fifty-four acres of land to Henry T. and Henry N. Calton. That part of the deed material to be considered reads as follows:
"State of Tennessee, Lawrence County.
"For and in consideration of, etc., * * * we, Samuel R. Lewis and Sally J. Lewis, his wife, have this day bargained and sold * * * unto H. T. and Henry N. Calton the following described tract or tracts of land, lying and being on the waters of Crowder creek, in the 10th civil district of Lawrence county, in range five, section one, bounded as follows," etc.
This deed was duly acknowledged by the grantors before the clerk of the county court of Lawrence county, in the State of Tennessee.
This suit was brought by the grantees, who alleged in their complaint that, at the time the deed was executed, one Voss was in the adverse possession of a part of the land so conveyed and warranted, holding the same by title paramount to that of the grantors; that the plaintiffs had never obtained possession of the tract so adversely held, and that they had thereby sustained damages, for which they prayed judgment.
The plaintiffs were denied a recovery in the court below, on the ground that the deed was void for want of a sufficient description of the land conveyed, the invalidity alleged being that the State in which the land is situate can not be ascertained from the deed. This objection is not well taken.
"A deed will not be declared void for uncertainty as long as it is possible by any reasonable rules of construction to ascertain from the description found therein what property it was intended to convey." McDonald v. Payne, 114 Ind. 359, 16 N.E. 795; Wendell v. Jackson, 8 Wend. 183; Stone v. Stone, 116 Mass. 279.
The inquiry in such a case is, could a surveyor take the deed and ascertain from an inspection of it where the land was located, so that he could mark out the tract, by going upon the land, from the description and references contained in the deed? The only infirmity alleged in respect to the deed in the present case is, that it omits to name the State in which the land conveyed is situate. Upon looking at the deed, it will be seen that it begins thus: "State of Tennessee, Lawrence county." It is recited in the body of the deed that the land bargained and sold lies in Lawrence county, and the grantors appeared before the clerk of the county court of Lawrence county, in the State of Tennessee, and acknowledged the deed. Coupled with an averment in the complaint that the land bargained and sold, and intended to be conveyed, was situate in Lawrence county, in the State of Tennessee, the plaintiffs were entitled to show the facts, and in case a breach of the covenants of warranty existed, as alleged, to recover damages accordingly.
The true rule upon the subject is, that where the description in a deed or mortgage is so uncertain as to afford no reliable clue to a more correct and definite description, as in case there is nothing in the instrument to indicate the State, county or locality in which the land is situate, it will be held void; but if, taking all the facts which appear upon the face of the instrument, and the legal presumptions which naturally flow from those facts, a true description may be supplied by aid of proper averments and proof, the instrument will be held sufficient. Dutch v. Boyd, 81 Ind. 146; Noland v....
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