Hayes v. Martin

• Citation: 40 So. 204,144 Ala. 532
• Parties: HAYES v. MARTIN.
• Decision Date: 17 February 1906
• Court: Supreme Court of Alabama

40 So. 204

144 Ala. 532

HAYES v. MARTIN.

Supreme Court of Alabama

February 17, 1906

Appeal from City Court of Birmingham; C. W. Ferguson, Judge.

"To be officially reported."

Action by A. W. Hayes against Annie Mae Martin. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Smith &amp Smith and Vaughan & Davidson, for appellant.

Banks &amp Selheimer and Cabaniss & Weakley, for appellee.

HARALSON J.

Objections to the deed from James M. Ware to James C. Armstrong, were improperly sustained. Only ten acres as the deed specifies, no more nor less, were to be conveyed and a diagram of the land was attached to the deed as a part of it.

The description in said deed, of the ten acres in question is, "a certain part of the N.W. of the S.E. quarter of the same section (26) in the shape shown by the dots in black and red in above diagram, and being on the west side and in the S.W. corner of the last above forty acre block above described and containing ten acres neither more nor less--and beginning at the center of the south half of said section 26 running thence north along the dividing or middle line of said section south and north to the center of said section, thence running in a southeasterly direction along and near a ravine on suitable ground for a road (on either side of said ravine from the said center of said section in the direction of the Union Passenger Depot in Birmingham, Alabama, to the south boundary line of said last named forty acre block thence west and along the said north boundary line of said 40 acre block to the point of beginning, but it is agreed that there shall be a survey--made of said last described ten acres of said 40 acres block and a plat and description furnished by the surveyor who may make the survey, that if more that ten acres are embraced in the said certain ten acre block above described and as shown in above diagram, then so much of the north part thereof be cut off and designated by the surveyor as will leave only ten acres remaining--and the excess over ten acres shall not pass by this conveyance--the surveyor's map and certificate of such survey shall be referred to, recorded and made a part of this deed."

The quantity of the land conveyed is certain. It is ten acres neither more nor less. The particular ten acres are clearly within the description of the land the parties intended should be conveyed by the deed. They evidently did not think,...