Crosby Lumber & Mfg. Co. v. Elsas

• Citation: 183 So. 499,183 Miss. 107
• Decision Date: 03 October 1938
• Docket Number: 33310
• Parties: CROSBY LUMBER & MFG. Co. v. ELSAS et al
• Court: United States State Supreme Court of Mississippi

183 So. 499

183 Miss. 107

CROSBY LUMBER & MFG. Co. v. ELSAS et al

No. 33310

Supreme Court of Mississippi

October 3, 1938

Division A

1 DEEDS.

A warranty deed conveying 148 acres in lots 2 and 3 was void for uncertainty in description where letters patent to grantor and the township plat showed that lots 2 and 3 contained 148.74 acres, and the deed did not indicate where the.74 of an acre not conveyed was to be found in lots 2 and 3.

2. LOGS AND LOGGING.

Plaintiffs could not recover value of timber cut by defendant from lands allegedly owned by plaintiffs where the deed upon which plaintiffs' title to the lands rested was void for uncertainty in description.

HON. R E. BENNETT, Judge.

APPEAL from the circuit court of Wilkinson county HON. R. E BENNETT, Judge.

Action at law by Mrs. Bertha R. Elsas and others against the Crosby Lumber & Manufacturing Company for the value of timber cut from lands of which the plaintiffs alleged themselves to be the owners. From a judgment for the plaintiffs, the defendant appeals. Reversed and rendered.

Reversed and judgment here for appellant.

Bramlette & Bramlette, of Woodville, for appellant.

As we understand the law, it is not incumbent on appellant to show title in appellant in order to reverse the judgment of the court below since the first obligation and the burden of proof is on appellees to show title in themselves which they have not only failed to do but specifically declined to claim title to the fifty-five acres timbered lands by excluding same from their declaration; however, not only does the record demonstrate that appellees are not vested with title to the fifty-five acres timbered lands and do not claim same but, while no obligation rests on appellant to show title, the record further demonstrates that title thereto is actually vested in appellant, and appellees are without legal title to any part of the land in Lots 2 and 3.

It is a cardinal rule in the construction of deeds that a deed will not be held void for uncertainty of description if by any reasonable construction it can be upheld.

McLendon v. Ravesies, 178 Miss. 428; Swan v. New England Mortgage & Securities Co., 75 Miss. 907; 18 C. J. 180, 181; Jenkins v. Bodley, Smedes & Marshall's Chancery Reports, page 338; Nixon v. Clevenger, 74 Miss. 67; Enochs v. Miller, 60 Miss. 19; McManus v. Wilson, 138 Miss. 1; Nixon v. Porter, 34 Miss. 697; Gex v. Dill, 86, Miss. 10; Hanna v. Renfro, 32 Miss. 125.

The testimony of the witness, T. B. McCurley, shows conclusively that from the purchase of this land by appellant's remote grantor, Foster Creek Lumber Company, in 1907, down to and including the present time, appellant and its grantors have exercised exclusive, continuous, actual and adverse possession such as to vest title in appellant even had appellant not been vested with record title.

McCaughn v. Young, 85 Miss. 277; Leavenworth v. Reeves, 106 Miss. 722; Jones v. Brandon, 59 Miss. 585; Herod v. Robinson, 149 Miss. 354; Pegram v. Newman, 54 Miss. 612; 8 R. C. L. 1086, see. 143.

The lower court committed fatal error in admitting into evidence, a purported deed from Peter Perkins to Morris H. Rothschild. Appellees' deed from Peter Perkins to Morris H. Rothschild calls for exactly "One Hundred and Forty Eight acres in Lots Two and Three in Section Thirty Six, Township four, Range two West." The patent from the United States to Peter Perkins established Lots 2 and 3 of Section 36, Township 4 North, Range 2 West, as containing exactly one hundred and forty-eight and seventy-four hundredths acres. While the patent calls for one hundred and forty-eight and seventy-four hundredths acres and appellees' deed from Peter Perkins calls for one hundred and forty-eight acres, appellees emphasize the invalidity of the deed by their own admission in their declaration, wherein they expressly and without equivocation say that fifty-five acres timbered land lying in the Northern part of said Lots 2 and 3 is not covered by this deed.

The deed from Peter Perkins to Morris H. Rothschild is invalid for the reason that it would purportedly convey land not belonging to Peter Perkins on January 26, 1912, the date of said deed, title to which land having been vested in another five years before.

In the Rothschild deed is a patent ambiguity utterly incurable by parol evidence or otherwise. There is bare one hundred and forty-eight acres in lots 2 and 3 described, whereas the declaration alleged Lots 2 and 3 contained 149.48, acres and the United States patent revealed 148.74 acres. Either figure taken leaves an excess above 148 acres and there is no human device known whereby the 148 acres can be located in Lots 2 and 3. The description is utterly void and renders the purported deed null and void.

Plenny v. Ferrill, 11 So. 5; Brown v. Guice, 46 Miss. 299; Swayze v. McCrossin, 13 S. & M. 317; Yandall v. Pugh, 53 Miss. 225; Dingey v. Paxton, 60 Miss. 1038.

Jones & Stockett, of Woodville, for appellees.

The timber was cut and removed from the entire lands and the estimate of all such timber so cut was made. A separate count was made of such timber inside and outside of plats made by appellant and Morgan (appellee's agent), but the witness on the objection of appellant, was not permitted to recite those findings. It will be noted here and at this time that appellant has never denied the cutting and conversion of any of this timber, and that the positive testimony of its...