Harris v. Byrd

• Decision Date: 20 June 1918
• Docket Number: 2 Div. 641
• Citation: 202 Ala. 78,79 So. 472
• Parties: HARRIS v. BYRD.
• Court: Alabama Supreme Court

79 So. 472

202 Ala. 78

HARRIS v. BYRD.

2 Div. 641

Supreme Court of Alabama

June 20, 1918

Appeal from Law and Equity Court, Marengo County; E.J. Gilder Judge.

Statutory action in nature of ejectment by Sallie U. Byrd against George W. Harris. Judgment for plaintiff, and defendant appeals. Affirmed.

Jesse V. Boyles, of Thomasville, for appellant.

Arthur M. Pitts, of Selma, for appellee.

MAYFIELD J.

This was a statutory action in the nature of ejectment, brought by appellee against appellant. The complaint describes the land as follows:

"Beginning at the middle of old gateway near the southeast corner of the northwest quarter (N.W. 1/4) of northwest quarter (N.W. 1/4) of section thirteen, township twelve, range two (2) east, running north twenty-three (23) degrees east, one hundred and one (101) chains and (80) eighty links to the northern boundary line of section twelve thence east two (2) chains to an old fence; thence in a southwardly direction along the old fence row as it now runs to the place of beginning, the said land being a part of sections twelve (12) and thirteen (13), township twelve (12) range two (2) east, and containing one hundred acres more or less."

The verdict was for plaintiff, and described the land recovered as follows:

"All lands sued for lying east of a line running in a N.E. direction from the center of the old gateway in the N.W 1/4 of section 13, to a point on the N. line of section 12, one hundred feet W. of the N.W. corner of N.E. 1/4 of N.E. 1/4 of section 12, being the same line set forth in deed from Thomas W. Harris and wife to George W. Harris and wife, recorded in Deed Book JJ, page 44, records of Marengo county, Alabama."

Judgment for plaintiff was accordingly rendered for the lands described in the verdict; but judgment was rendered by consent of plaintiff in open court, against her, for the costs of the suit. This, of course, was irregular; but we fail to see how it could be of injury or detriment to the defendant (appellant here) if plaintiff was entitled to recover. Nor does it appear that plaintiff's consent to the judgment against her for the costs influenced the verdict in the least as to the recovery of any part of the land described in the verdict or in the judgment.

It is insisted by the appellant that the description of the land in the complaint, verdict, and judgment is void for uncertainty. We cannot agree to this contention. It is evident that the description is not void on its face. The language used does not contribute to the invalidity or insufficiency of the description. If the land described is uncertain, the uncertainty must be shown by parol and extended by proof. In other words, if the monuments and boundaries mentioned are to be found, then the description is certain because it can be made certain.

A description, though indefinite, may be sufficient if the court can, with the aid of extrinsic evidence which does not add to or change the description, fit it to the property described. Rogers v. Keith, 148 Ala. 225, 42 So. 446.

Where it appears from the description in a conveyance that the shape of the land is triangular, if the quantity of land and the angle between the two sides are given the description is sufficient. Hayes v. Martin, 144 Ala. 532, 40 So. 204.

Parol evidence is admissible to explain or remove uncertainty or ambiguity which constitutes a latent ambiguity in a deed, mortgage, or other conveyance; but such evidence is not admissible to show a mistake of description or to alter, vary, or substitute different descriptions. Hereford v. Hereford, 131 Ala. 573, 32 So. 620; Guilmartin v. Wood, 76 Ala. 209.

Where a deed does not contain on its face a patent ambiguity and does not equally describe two lots, parol proof of what was intended by the parties will not be received, but it will be received to remove a latent ambiguity. Hereford v. Hereford, supra; Chambers v. Ringstaff, 69 Ala. 143.

Id certum est, quod reddi potest. Loyd v. Guthrie, 131 Ala. 71, 31 So. 506.

This court has gone the full length in admitting parol evidence to sustain the validity of deeds assailed upon the grounds of indefiniteness in the description of the land. And as said in Cottingham v. Hill, 119 Ala. 353, 24 So. 552, 72 Am.St.Rep. 923:

"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 appears, no injustice results, if by parol evidence the precise property intended to be conveyed can be clearly identified." Chambers v. Ringstaff, 69 Ala. 140; Tobias v. Treist, 103 Ala. 664, 15 So. 914; Webb v. Elyton Land Co., 106 Ala. 471, 18 So. 178.

The description of the property conveyed must, however, possess such data as will afford a basis for the parol evidence. It must be so designated as to enable its identification and location by parol. Griffin v. Hall, 111 Ala. 601, 20 So. 485; Harrelson v. Harper, 170 Ala. 121, 54 So. 517.

If the calls and mouments mentioned in the description are to be found, and can be found by the sheriff or by a surveyor aiding him, then there is no such uncertainty as to render the description void. Even where lands are described by government numbers, a surveyor may be necessary to ascertain the boundaries.

It conclusively appears from this record that the only real dispute between these parties is a disputed boundary line between two tracts of land, one known as the Byrd tract, and the other as the Morgan tract. The plaintiff owns and claims the Byrd tract, and the defendant, the Morgan tract. Neither appears to claim any part of the other tract, but the dispute is as to the boundary line between the two adjoining tracts. It also appears that both tracts were once owned by Judge Byrd and...