Carling v. Wilson

• Decision Date: 30 January 1912
• Citation: 58 So. 417,177 Ala. 85
• Parties: CARLING v. WILSON.
• Court: Alabama Supreme Court

58 So. 417

177 Ala. 85

CARLING v. WILSON.

Supreme Court of Alabama

January 30, 1912

Rehearing Denied May 1, 1912.

Appeal from Circuit Court, Elmore County; W. W. Pearson, Judge.

Ejectment by Albert F. Wilson against T. J. Carling, as trustee. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

The deed from Holt to Wilson, of September 30, 1908, is as follows: After the usual granting clause, stating considerations, etc., the description is as follows "The following described lands situated in Elmore county, state of Alabama, to wit: 25 acres, more or less, in fractional sections 21 and 22, township 19, range 18, Elmore county, Alabama, on the west side of Coosa river, bounded on the south as follows: By Cohn & Goldberg; on the north, by lands owned by the state of Alabama; on the west by the undersigned, the west line to be established by survey bounded on the east by the Coosa river." After usual covenants, it is provided that the express condition of this conveyance is that said Wilson has the option to pay or not to pay the deferred payment of $50 an acre, for the 25 acres more or less; but, should he not pay the same on or before October 21, 1909, then and in that event all of the right title, interest, and estate in said lands hereby conveyed shall revert back to and become vested in the undersigned and the said Wilson thereafter has no right, title, interest, or estate, legal or otherwise, to the same.

Frank W. Lull and J. M. Holly, both of Wetumpka, for appellant.

Thetford & Mackenzie, of Montgomery, B. K. McMorris, of Wetumpka, and W. A. Gunter, of Montgomery, for appellee.

McCLELLAN J.

Statutory ejectment by Wilson, appellee, against Carling, appellant. The plaintiff's right to recover, as appears from this record, depends upon the efficacy, as a conveyance, of the instrument purporting to have been executed, on September 30, 1908, by T. R. and M. H. Holt, to Albert F. Wilson. The report of the appeal will contain a copy of that instrument.

It appears, with certainty, from the evidence, that the Holts owned a large area of land in fractional sections 16, 21, and 22, of township 19 N., range 18 E., on the west and south (in section 16) sides of the Coosa river. It was the evident purpose of the Holts to convey to Wilson a part of this area. The court is of the opinion that that purpose was not effected by the instrument of September 30, 1908, for the reason that no valid description of the real estate to be conveyed was made therein. In short, the instrument is void on account of a wholly insufficient, uncertain description of the real estate intended to be conveyed. Accordingly, the affirmative charge, requested by the defendant, was erroneously refused.

In the first place, if it be assumed that exactly 25 acres was intended to be conveyed, and also that the call for state-owned land was to be found in the south line of section 16, the instrument entirely fails to define the west line of the area, and, so omitting, likewise is wholly silent as to the shape in which the 25 acres should lie. Indeed, accepting the assumptions stated, it is clear that an almost indefinite number of 25-acre areas, of as many different formations, could be laid off, touching each of three boundaries so assumed to be fixed by the instrument, and still, in each instance, conform to the every requirement of the description of the instrument. For instance, if the width of the strip at the north end (along the sixteenth section's south line) assigned by the plaintiff as the correct north boundary, was approximately doubled, and the apex of the inverted triangle of the 25-acre area rested on the land of Cohn & Goldberg at the south, the boundaries plaintiff finds fixed in the instrument would be adhered to.

Appeal is made by counsel for appellee for the application of the principle applied in Wilkinson v. Roper, 74 Ala. 140, 148, where it was held that a deed describing "10 acres off the northwest corner of said quarter section" conveyed "a square, and bounded by four equal sides," and in Green v. Jordan, 83 Ala. 220, 224, 3 So. 513, 514 (3 Am. St. Rep. 711), where it was held that an exception of "2 acres in the southeast corner" of a governmental subdivision meant a square of that area, bounded by equal sides, and in Gaston v. Weir, 84 Ala. 193, 195, 4 So. 258, where it was held that description of "47 1/4 acres of the west part of the north half of the northwest fourth of section 1" effected to convey a parallelogram containing that area. The like doctrine was adverted to in Louisville & Nashville Railroad Co. v. Boykin, 76 Ala. 560, 565.

The doctrine of these decisions cannot be availed of with respect to the instrument under consideration. In them the shape of the definite area was indicated by the instruments there involved. They referred, and were referred to bases of straight lines, thereby affording data for accurate ascertainment of the particularly undefined lines. Here the Coosa river connects (upon the assumptions stated) the north and south lines. As appears, the river boundary is not straight. It is tortuous; and this is...