Davis v. Wells, 8 Div. 876
| Decision Date | 01 November 1956 |
| Docket Number | 8 Div. 876 |
| Parties | A. B. DAVIS v. A. G. WELLS. |
| Court | Alabama Supreme Court |
H. G. Bailey, Boaz, for appeallant.
Marion F. Lusk, Guntersville, for appellee.
This is a boundary line dispute in equity. Appellee was the complainant and appellant the respondent in the court below. Complainant's land is immediately north of respondent's. There is also a tract north of complainant's land. The three tracts were in one body and owned by Z. G. Wells at the time of his death which occurred prior to February 15, 1923. On that day his widow and heirs undertook to divide the entire area into three tracts and executed a deed to W. T. Wells (one of the heirs) to the northern portion, to J. R. Wells to the middle portion (now owned by complainant), and a deed to L. E. Wells to the southern portion (now owned by respordent). A crude drawing was attached to the deeds to J. R. Wells and to L. E. Wells, respectively. The deed to W. T. Wells, conveying the northern portion, did not contain a drawing, but it described the area as bounded by a line beginning at a point 'p' as shown by a certain recorded map which was introduced in evidence. That point is not so marked on the drawings attached to the other deeds but it is clearly identifiable. The deed to W. T. Wells describes the point designated 'p' as '24.16 chains north of the half mile corner on the south line of the section' thence extending west, thence north, thence southeast to corner, thence south 9.06 chains to the starting point.
On the same day the heirs deeded to J. R. Wells (the father of complainant) the middle tract, describing it as beginning at a point 'n' as shown by the attached drawing, which is south of point 'p', supra, and on the same section line, declaring that point 'n' is 12.8 chains north of said half mile corner. The location of point 'n' is important in this controversy. (Later on March 22, 1930, J. R. Wells conveyed to complainant by the same descritpion).
The deed executed on February 15, 1923 to L. E. Wells (under whom respondent claims by deed dated October 2, 1933) described the south portion as beginning at the point 'k', as shown on the drawing, which is the 'half mile corner on the south line of the section', thence west a number of chains, thence north 12.8 chains, thence east to 'n', thence south 12.8 chains to the beginning point.
These descriptions to not jibe. They describe the south line of the northern area as 24.16 chains north of the half section corner. If the south line of the northern lot was 24.16 chains from the south line of the southern lot, one-half of that would be 12.08 chains and not 12.8 chains. That is a difference of .72 chains,--a chain being sixty-six feet,--or a difference of 47.52 feet. If the deeds to L. E. Wells and J. R. Wells, respectively, are given full force as to the area described, it would take off that much from the northern lot deeded to W. T. Wells; and there is not sufficient land to meet the descriptions of the three lots. The controversy here is between A. G. Wells, succeeding to the middle area, and A. B. Davis, succeeding to the southern area, on the assumption that the starting point 'p' of the northern area is 24.16 chains north of the half section corner on the south. Both parties to this suit claim to have had possession of the disputed area for over twenty years before this suit was begun.
The trial court, on testimony taken by deposition, ordered a correction of the description in the respective deeds so as 'to read 12.08 chains in lieu of the figures 12.8 wherever they appear in the respective descriptions of the lands described in the complaint,' and (2) made a description of the connecting boundary line so that it will be 12.08 chains instead of 12.8 chains from the south line of the section.
There had previously been a decree overruling a demurrer to the bill, The assignments of error include the ruling on the demurrer, the reformation of the deeds, and the location of the disputed boundary line.
Appellant's brief does not specify the respective assignments of error to which the arguments are directed as required by Supreme Court Rule 9(10), Code 1940, Tit. 7 Appendix. Christian v. Fidelity & Casualty Co. of New York, 264 Ala. 616, 88 So.2d 840; Shelby County v. Hatfield, 264 Ala. 488, 88 So.2d 842. But where the brief shows inherently and clearly to what assignments the respective arguments are directed, the court exercises discretion to give consideration to them especially when opposing counsel do not seem to be misled or troubled by that status of the brief.
Appellant has cited Ashurst v. McKenzie, 92 Ala. 484, 9 So. 262, under a statement that complainant cannot maintain a bill in equity to establish a disputed boundary line when the bill shows that complainant is in possession of the disputed area. Since that decision, equity jurisdiction has been given by statute without the common law restrictions on its jurisdiction in that connection. Title 47, section 2, Code of 1940, (6439, Code of 1923); Title 13, section 129(5), Code.
It was held in Wynne v. Hall, 259 Ala. 5, 65 So.2d 201 (), that a bill in equity to settle a disputed boundary line is sufficient when it describes the land of both parties showing that they are coterminous owners, and alleges that a dispute exists as to the true and correct boundary line between them and describes such line according to complainant's contention; and held that Ashurst v. McKenzie, supra, and Jasper v. Eddins, 208 Ala. 431, 94 So. 516, are no longer effective. Complainant's contention is based upon adverse possession. See McNeil v. Hadden, 261 Ala. 691, 76 So.2d 160.
The demurrer raises no question as to a reformation of the deeds so as to correct the description in them, and the bill does not seek such reformation. There was no error in overruling the demurrer to the bill as the same is here presented for review.
Appellant also argues that the evidence does not justify a reformation of the deeds based on the prayer for general relief so as to correct the description as ordered and decreed by the court. It is not argued by appellant that the bill is not sufficient in its...
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