Jennings v. Brizeadine

• Decision Date: 31 August 1869
• Citation: 44 Mo. 332
• Parties: WILLIAM B. JENNINGS et al., Respondents, v. FRANK BRIZEADINE, Appellant.
• Court: Missouri Supreme Court

44 Mo. 332

WILLIAM B. JENNINGS et al., Respondents,

v.FRANK BRIZEADINE, Appellant.

Supreme Court of Missouri.

August Term, 1869.

Appeal from Fifth District Court.

Asper & Pollard, with whom was W. P. Hall, for appellant.

Where the description of the deed is particular, that must be followed; and if there is no property to which it can apply, the grant fails. (2 Washb. Real Prop. 669-71; Smith v. Strong, 14 Pick. 128; Whiting v. Dewey, 15 Pick. 434; Winn v. Cattell, 18 Pick. 534; Dana v. Middlesex, 10 Met. 250; 4 Kent's Com. 467.) Both deeds made by Harker, sheriff, refer to the same sale. The first is an execution of the power, and the second is a nullity.

II. The court erred in the instructions for the plaintiff, whereby the jury were required to consider parol evidence, and find that lot 46, in the description of the trust deed, meant block 46. (1 Greenl. Ev. §§ 297-301; Serjeant v. Adams, 3 Gray, 72-77; Miller v. Travers, 8 Bing. 244; Barnes v. Leonard, 10 Mass 459; 43 Maine, 600; 2 Washb. Real Prop. 669-70, §§ 37, 38; Worthington v. Hillyer, 4 Mass. 196; Smith v. Strong, 14 Pick. 128; Atkinson v. Cummins, 9 How. 479.) The general description following the number will not control as against the particular preceding description, but must give way to it. (2 Washb. Real Prop. 670, § 38; 1 Greenl. § 301.)

Jas. McFerran, for defendant in error

I. The deeds of sheriff Harker to the defendant in error, read in evidence by the parties, conveyed the legal title to the land in controversy to the defendant in error. (5 Johns. Ch. 44; 12 U. S. Dig. 627, § 367; Beattie v. Butler, 21 Mo. 319.)

II. The description of the land in controversy is sufficient, both in the petition and in the deeds read in evidence to the jury. (Clark v. Wethey, 19 Wend. 320; 4 U. S. Dig. 537, §§ 435, 439; Dodge v. Potter, 18 Barb., N. Y., 193; 15 U. S. Dig. 157, § 121.)

WAGNER, Judge, delivered the opinion of the court.

This was a suit in ejectment, brought in the Livingston Circuit Court, to recover possession of block 46, in the city of Chillicothe. The petition was in the usual form, describing the property as follows: “Lot number forty-six (46), the same being block forty-six (46).” The answer denied that plaintiff was entitled to possession, and set up title in one of the defendants. There was a replication filed. The plaintiff deduced title by virtue of a sale made under a deed of trust.

The cause coming on to be heard, the plaintiff introduced William Keith as a witness, who testified that he was the grantor in the deed of trust, executed by himself and wife, to W. Y. Slack as trustee, dated October 8, 1860, and resided on the property conveyed by the deed of trust. It was always known as block 46; was known to him by that description; so given to the assessor; and witness never heard it called anything else until the deed was made. The deed described it as lot 46. Mr. Jennings made the deed, and said that the new survey of the town so called it. The plat on last survey of the town was then introduced by the plaintiff, a copy of which is embodied in the bill of exceptions, from which it appears that the town is laid off in lots and blocks, and that no lots are numbered as high as 46. The property in controversy is designated as block 46, but does not seem to have been subdivided into lots. The plaintiff then offered in evidence the deed of trust to Slack as trustee, made by Keith and wife, in which the property is described as lot 46. The next evidence offered by the plaintiff was the deed of the sheriff of Livingston county, who executed the trust--Slack having in the meantime died--conveying the property to plaintiff, who purchased at the sale, wherein it is described as “lot 46, the same being block number forty-six (46), in the city of Chillicothe, according to the third and last survey of said city.” To the introduction of all the above testimony the defendants objected; but the court overruled their objections, and exceptions were duly taken. Under instructions given by the court, the jury found a verdict for the plaintiff, and judgment was entered thereon. That judgment was affirmed in the District Court, and the cause is now pending here by appeal.

The first objection that will be considered is the action of the court in admitting parol testimony to show that block 46 was intended by the description “lot 46.” The rule is that to render a deed or other instrument void for uncertain description, the ambiguity must be patent and appear on the face of the instrument; but where the uncertainty is raised by matter outside of the instrument, the ambiguity is latent, and may be explained by the application of extrinsic evidence. (Hardy v. Matthews, 38 Mo. 121, and cases cited.) “A latent ambiguity,” says Sugden, “is that which seems certain and without ambiguity for anything appearing on the face of the instrument, but there is some collateral matter out of the instrument that breeds the...