Hereford v. Hereford

• Decision Date: 13 February 1902
• Citation: 131 Ala. 573,32 So. 620
• Parties: HEREFORD v. HEREFORD. [1]
• Court: Alabama Supreme Court

32 So. 620

131 Ala. 573

HEREFORD v. HEREFORD. ^[1]

Supreme Court of Alabama

February 13, 1902

Appeal from city court of Montgomery; A. D. Sayre, Judge.

Action by Harry Hereford against Lucy Hereford. A new trial was granted defendant, and plaintiff appeals. Affirmed.

This was a statutory action of ejectment, brought by the appellant, Harry Hereford, against the appellee, Lucy Hereford, to recover a certain lot or tract of land specifically described in the complaint. The facts of the case necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion.

Upon the introduction of all the evidence, the court at the request of the plaintiff gave the general affirmative charge in his behalf, to the giving of which charge the defendant duly excepted.

There were verdict and judgment for the plaintiff. Thereafter the court on motion of the defendant granted her a new trial, and from this judgment granting such new trial, the present appeal is prosecuted; and the rendition of this judgment is assigned as error.

Harmon Dent & Weil, for appellant.

E. P Morrissett and Hill & Hill, for appellee.

HARALSON J.

The lot sued for is described in the complaint, as "a part of lot No. 5 in square No. 20 in that part of the city of Montgomery, state of Alabama, laid off on the Scott property said lot beginning at the northeast corner of lot formerly owned by Mary Ann Green, thence, running north, 35 feet thence, 75 feet west, thence, south, 35 feet, thence, east, 75 feet to the point of beginning, said point of beginning being about 78 feet north of the northwest corner of the intersection of Union and Columbus streets," etc.

The plaintiff claims title under a deed from E. W. Taylor and wife to him, duly executed on the 30th of September, 1884, in which the land is described as a lot of land in the city of Montgomery, Ala., "said lot of land known as a part of lot number 5 in square number 20, in that part of the city of Montgomery laid off on the Scott property, said lot beginning at the north corner of Mary Ann Green's lot, running north, 35 feet, thence, 75 feet west, thence, running south 35 feet, thence, east, 75 feet to the corner or place of beginning."

The defendant holds and claims title to the lot under a deed from the plaintiff to her, duly executed on the 10th of January, 1898, in which the lot is described in substantially the same manner, and in almost the same words as in the deed from Taylor and wife to the plaintiff, copied above. In both the deeds, the beginning of the particular description, is "at the north corner of the Mary Ann Green lot." We have in each deed everything to make the description certain, except that the beginning of the particular description is placed at the north corner of the Green lot, instead of at its northeast corner. If the northeast corner of the said Green lot had been specified in the initial part of description, there would have been no uncertainty of description, when the boundaries of the Green lot were once shown. In construing a deed, where the description is by metes and bounds, "evidence of the situation and locality of the premises, and of their identity is admissible. But such evidence is not admissible to show a mistake in the description, or alter or vary the boundary, or to substitute another and different boundary for the one expressed in the conveyance." Guilmartin v. Wood, 76 Ala. 209.

The plaintiff introduced in evidence a diagram of the premises showing the relative situations of the lot sued for and the Green lot. The latter, by this plat, is a parallelogram fronting on the east and south of Union and Columbus streets respectively, with its longer sides,--about 78 feet long,--running north and south,...