East v. Karter

• Decision Date: 17 June 1926
• Docket Number: 6 Div. 596
• Parties: EAST et al. v. KARTER.
• Court: Alabama Supreme Court

110 So. 610

215 Ala. 375

EAST et al. v. KARTER.

6 Div. 596

Supreme Court of Alabama

June 17, 1926

Rehearing Granted Dec. 9, 1926

Second Application for Rehearing Denied Jan. 6, 1927

Appeal from Circuit Court, Cullman County; O. Kyle, Judge.

Bill in equity by Frank A. Karter against Esther Beyer East, John F Beyer, and George H. Karter. Respondents Esther Beyer East and John F. Beyer filed a cross-bill against Frank A. Karter and George H. Karter. Demurrer to the cross-bill was sustained, and cross-complainants appeal. Reversed and remanded.

Anderson C.J., and Sayre and Miller, JJ., dissenting.

Brown &amp Bland, of Cullman, and Rushton, Crenshaw & Rushton, of Montgomery, for appellants.

F.E. St. John and Emil Ahlrichs, both of Cullman, for appellee.

SAYRE J.

Appellee filed his bill for the sale and partition of three certain lots in the city of Cullman. By their cross-bill appellants interposed their claim of ownership of the entire fee. The court sustained appellee's demurrer to the cross-bill, and the cross-complainants have appealed.

The instrument in the form of a conveyance under which appellants claim title describes the lots in controversy as follows:

"Part of lot No. 353 being 29' 3"'X132; part of lot No. 494 being 104X132; part of lot No. 492 being 165X132.

"On part of lot No. 353 there is a mortgage in favor of the Improved Building & Loan Association, situated and lying and being in the county of Cullman and state of Alabama."

The muniment of title under which appellants claim is void for uncertainty, because there is nothing to show what "part" is intended. Mutual Building & Loan Ass'n v. Wyeth, 105 Ala. 639, 17 So. 45; Tierney v. Brown, 65 Miss. 563, 5 So. 104, 7 Am.St.Rep. 679; 2 Devlin on Real Estate (3d Ed.) § 1011a; 8 R.C.L. p. 1083, § 140.

We do not see that the reference to a mortgage helps the matter in the least, for, if it be assumed that the mortgage adequately describes the part with which it deals, there is nothing to show that the part described in appellants' muniment is identical with the part described in the mortgage. Moreover, it may well be said that the reference to certain numbered lots means nothing in the absence of further reference to some certain existent map or plat showing the lots to which the so-called deed refers. Thrasher v. Royster, 187 Ala. 350, 65 So. 796.

The reliance for appellant is upon Chambers v. Ringstaff, 69 Ala. 140. We think the facts in that case suffice to show grounds of discrimination which should be observed. The difficulty with appellee's muniment of title in that case was, not that it failed adequately to describe the parts of sections 7 and 17 which his mortgage undertook to convey, that is, there was no suggestion that the parts of the named sections were inadequately described so far as concerned the location of the parts within the sections, but only that nothing was therein said of the state, county, land district, or government survey in which the land lay. However, the instrument did show that sections 7 and 17, to which it referred, were in township 12, range 18. Said the court:

"There is but one range 18 in the state, and that lies east of the basis meridian of St. Stephens. There is but one township 12 that bisects range 18, and that is north of that survey."

So then the only defect in appellee's muniment of title was that it failed to show that the land was situate in this state. In Meyer Bros. v. Mitchell, 75 Ala. 475, the description in the case upon which appellant relies was referred to in this language, Stone, C.J., concurring, presumptively:

"In Chambers v. Ringstaff, 69 Ala. 140, a description of lands in a mortgage, void on its face for ambiguity, was allowed to be aided by oral evidence showing that the grantor owned and resided on certain lands in this state, which were known and described by the same numbers as those employed in the mortgage. The ambiguity there arose from the fact that the description employed in the instrument was, on the face of it, equally applicable to many tracts of land located in various government surveys. The conclusion was reached upon the principle that parol evidence was admissible to show the surrounding or attendant circumstances under which the contract was made, and to identify the subject-matter to which the parties referred."

In Jenkins v. Woodward Iron Co., 194 Ala. 371, 69 So. 646, the court said:

"It is true the deed in question [meaning the deed in question in the case then under consideration] conveys the land by numbers merely, without designating either county or state. But the bill of complaint shows that the grantee [grantor?] at that time owned and was in possession of lands in Jefferson county, Ala., described by these identical numbers; and, it not appearing that he then owned other lands described by these numbers, the identification is sufficient, and the conveyance will be pronounced valid"--citing Chambers v. Ringstaff, supra.

In Chambers v. Ringstaff the court said:

"When a contract or conveyance, on its face, or aided by judicial knowledge, equally describes two or more persons, things, etc., this is patent ambiguity, or ambiguity apparent. In such case, the rule is clear, and we do not wish to depart from it, that parol proof of what was intended by the contracting parties will not be received."

If the learning of that case has any bearing upon the case in hand, it means that the deed under which appellants claim was affected by patent ambiguity, and that the explanation of it offered in appellants' cross-bill cannot be received.

But, when the court came to consider a conveyance describing the subject of conveyance as "certain portions of a lot in the town of Guntersville, Marshall county, state of Alabama, more particularly described as follows, that is to say, two-thirds of the following described lot number 3," which lot No. 3 was accurately described, it said:

"We are of the opinion that the deed of April 25, 1888, from Louis Wyeth to John Brisser and the mortgage of the same date from John and Louise Brisser to Louis Wyeth were each utterly void for uncertainty of description of the land intended to be conveyed. The conveyance is not of the lot which is sufficiently described, nor of an undivided interest in said lot, but only of 'certain two-thirds' of a particularly described lot without any description or even attempted identification of the particular two-thirds of the parcel intended to be embraced in the instruments. The language used would as certainly cover the west two-thirds as the east, or the north or south two-thirds as the east or west, and as well the north as the south, and vice versa; and it cannot be said that it embraces any particular two-thirds part *** of it, or that a grant of two-thirds of a certain section passes title

...