Cottingham v. Hill

• Decision Date: 29 October 1898
• Parties: COTTINGHAM ET AL. v. HILL ET AL.
• Court: Alabama Supreme Court

24 So. 552

119 Ala. 353

COTTINGHAM ET AL. v. HILL ET AL.

Supreme Court of Alabama

October 29, 1898

Appeal from circuit court, Bibb county; John Moore, Judge.

Suit in ejectment by J. M. Cottingham and others against Henry Hill and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

J. M McMaster, for appellants.

Hague Lavender & Fuller, for appellees.

COLEMAN J.

The appellees sued in ejectment to recover an acre of land. Plaintiffs and defendants claim from a common source, the plaintiffs' deed having been executed first. There is no controversy as to the facts. The contention is whether plaintiffs' deed is void for want of a sufficient description of the land, and whether parol evidence was admissible to identify the land. The deed describes the land as follows: "One acre of land situated on the old Columbiana and Centerville road, on which the school house is to be built, and more particularly described as part of N.W 1/4 of N.W. 1/4 of section 9, township 22, range 6 west, in Bibb county, Ala." The parol proof offered in connection with this deed was that prior to its execution the grantors and grantees measured an acre of land, in shape square, with the road as a base, and cleared the same for the purpose of erecting a school house thereon; that the deed was executed describing it as above shown; that shortly after its execution the school house was erected on the acre, and has remained there ever since; and that the grantor owned no other acre in said 40 acres upon which a school house was to be built. The question presented is whether it is competent to show these facts by parol to identify the land in aid of the description in the deed. If the deed had described the land as the "school-house lot," under several decisions of this court it would be upheld, if by parol proof the acre could be identified as the school-house lot; and upon the same principle, we are of opinion that the words, "upon which the school house is to be built," would let in parol proof to identify it. This court has gone as far as any other in admitting parol evidence to sustain the validity of deeds assailed upon the ground of indefiniteness in the description of the land, but the rule which we have adopted promotes justice, and does not open the door to fraud and perjury. In all cases the writing has been sufficient to show a bona fide sale and conveyance was intended by the parties, and, where this...