Carrere v. Johnson

• Citation: 115 So. 196,149 Miss. 105
• Decision Date: 09 January 1928
• Docket Number: 26801
• Court: United States State Supreme Court of Mississippi
• Parties: CARRERE et al. v. JOHNSON et al. [*]

115 So. 196

149 Miss. 105

CARRERE et al. v. JOHNSON et al. ^[*]

No. 26801

Supreme Court of Mississippi

January 9, 1928

Division B

1 TRIAL. Directed verdict was proper, where controlling facts were undisputed.

Where controlling facts were undisputed, directed verdict was proper.

2. BOUNDARIES. Where particular description pointing out exact metes and bounds of land, pointed out to purchasers, followed general description, giving acreage, lot, section, township and range, particular description controlled, though acreage was much less.

Where first clause in deed described land "thirty-one acres in east side of lot 7, in section 14, township 7 south, range 9 west, together with all improvements thereon," and second clause described land, "Land hereby conveyed being bounded on south by Bay of Biloxi, on east by Scale property, on west by lands of Martin, and on north by north line of lot No. 7," particular description in second clause explained first description, and was controlling where exact metes and bounds were pointed out to purchasers even though lot contained only seventeen and three tenth acres.

HON. W. A. WHITE, Judge.

APPEAL from circuit court of Harrison county. HON. W. A. WHITE, Judge.

Action by Ernest E. Carrere and another against C. W. Johnson and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Affirmed.

Gardner, Brown & Stingily and Foster & Nailing, for appellants.

The court erred in directing the jury to find for the defendants. Rich v. Elliot, 10 Vt. 211, 213; 5 Words & Phrases, p. 4499; 4 Thompson on Real Property, p. 249, sec. 3150, and cases therein cited; McCready v. Langsdale, 58 Miss. 879; Enochs v. Miller, 60 Miss. 21; Phipps v. Tarpley, 24 Miss. 597; Barksdale v. Barksdale, 98 Miss. 173; Carleton v. Lombardi, 81 Tex. 355, 16 S.W. 1081; Hemingway's Code 1927, sec. 2473; 8 Am. & Eng. Ency. Law (2 Ed.), pp. 100-101; Allen v. Caffee, 85 Miss. 770; Sutton et al. v. Cannon, 100 So. 24.

The cases herein submitted fully sustain the appellants' contention that they were entitled to thirty-one (31) acres under the description in their deed. It is not denied that the tract of land conveyed to them contained only seventeen and three-tenths (17.3) acres of land. When the appellants alleged that the appellees were not seized of the deficiency of thirteen and seven-tenths (13.7) acres which they attempted to convey by their deed, the burden was upon the appellees to show their seized and not on the appellants to show that they were not seized. Thompson on Real Property, sec. 3479. They have totally failed to meet this burden.

J. L. Taylor, for appellees.

Appellees cite 8 R. C. L., pp. 1036-1085; 4 R. C. L., p. 109; 9 C. J. 224. There could be cited numerous other authorities, but the above law seems to so well settle this case, that we deem it not necessary to be prolix.

OPINION

ANDERSON, J.

Appellants brought this action in the circuit court of Harrison county against appellees to recover one thousand three hundred and seventy dollars damages alleged to have been suffered by appellants on account of appellees' breach of warranty in their conveyance to appellants of a certain parcel of land situated in Harrison county in this state. The court directed a verdict and judgment for appellees, from which judgment appellants prosecute this appeal. The controlling facts are undisputed; therefore a directed verdict was proper. The only question is whether appellants or appellees were entitled to it. The conveyance involved is in the following language, leaving off the formal parts and the acknowledgment thereto:

"For the consideration of thirty-one hundred ($ 3100) dollars cash in hand paid, the receipt which is hereby acknowledged, we, C. W. Johnson and J. W. Wentzell, hereby sell, convey, and warrant unto Ernest A. Carrere and Andrew T. Stafford the following described land situated in Jackson county, Mississippi, to-wit:

"Thirty-one (31) acres in the east side of lot seven (7) in section fourteen (14), township seven (7) south, range nine (9) west, together with all improvements thereon. The land hereby conveyed being bounded on the south by the Bay of Biloxi, on the east by the Scale property, on the west by the lands of Martin, and on the north by the north line of said lot No. seven (7).

"Witness our signatures, this the 9th day of May, 1925.

"[Three dollars and fifty cents canceled internal revenue stamps.]

It will be noted that the deed recites that thirty-one acres were conveyed. Appellees delivered possession of the land to appellants, who had it surveyed, which survey showed that, instead of being thirty-one acres in the lot, there were only seventeen and three-tenths acres, or thirteen and three-tenths acres short. Appellants thereupon brought this action for that proportion of the purchase price which thirteen and seven-tenths acres bears to thirty-one acres, the quantity of land recited in the deed. In the negotiations between the appellants and appellees for the sale and purchase of the land, the metes and bounds of the property were pointed out to appellants.

It will be noted that the first clause of the paragraph in the deed in which the land is described is in this language:

"Thirty-one acres in the east side of lot seven (7) in section fourteen (14), township seven (7) south, range nine (9) west, together with all improvements thereon,"--and that the second clause in the paragraph describes the land as follows:

"The land hereby conveyed being bounded on the south by the Bay of Biloxi; on the east by the Scale property; on the west by the lands of Martin, and on the north by the north line of lot No. seven (7)."

Appellants' position is that the deed contains two perfect descriptions of the property; that the description set out in the first clause is a perfect description, as is also that set out in the second clause; and that therefore the rule that, where property is described in a conveyance in general terms followed by a specific description by metes and bounds, the latter description will control instead of the former, has no application to this conveyance. Putting it differently, appellants contend that the first description was sufficient without the additional description by metes and bounds, and that therefore the boundary...