Karter v. East

• Decision Date: 05 December 1929
• Docket Number: 6 Div. 300.
• Citation: 125 So. 655,220 Ala. 511
• Parties: KARTER v. EAST ET AL.
• Court: Alabama Supreme Court

125 So. 655

220 Ala. 511

KARTER v. EAST ET AL.

6 Div. 300.

Supreme Court of Alabama

December 5, 1929

Rehearing Denied Jan. 28, 1930.

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

Bill in equity by Frank A. Karter against Esther Beyer East and others, and cross-bill by respondent East. From a decree for respondents, complainant appeals. Affirmed.

See also, 215 Ala. 375, 110 So. 610, and 218 Ala. 536, 119 So 662.

Sayre J., dissenting.

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

Earney Bland, of Cullman, and A. J. Harris, of Decatur, for appellees.

BOULDIN J.

A bill in equity was filed by Frank A. Karter against Esther Beyer East and others for the sale of lands for division among tenants in common.

By answer and cross-bill Mrs. East denied complainant's title to any interest in the property, and claimed title through a deed from her grandmother, Mary B. Karter, to her mother, Adeline J. Beyer, now deceased. This deed, made exhibit to the cross-bill, was attacked by demurrer as void for uncertainty in description of the property.

On former appeal, this court, by majority opinion on rehearing, sustained the deed was sufficient in matter of description with the aid of certain averments tending to identify the property with the description in the deed. East v. Karter, 215 Ala. 375, 110 So. 610.

On this appeal, taken from a final decree sustaining the title of Mrs. East, the same question is presented for reconsideration. We have carefully considered the question anew. Code, § 10287.

For convenient study we again set out the description in the deed:

"Part of lot No. 353 being 29' 3"' x 132; 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."

And the averments of the cross-bill in aid of such description:

"That said property above described, and lot 522 in the city of Cullman, Ala., upon which was located the home of the said Mary B. Karter and her husband, J. H. Karter, was all the real estate owned by the said Mary B. Karter on the 9th day of July, 1917; that there were no lots in Cullman county other than said lots that were designated by the numbers above set forth in the description of said property."

In the oft-cited case of Chambers v. Ringstaff, 69 Ala. 140, the description was by government numbers, without naming the land district, the meridian used as the base of survey, nor the county nor state in which the lands was located. The description was challenged as presenting a patent ambiguity, in that it was equally applicable to more than one tract of land without other data of identification.

The opinion defined patent and latent ambiguities, and recognized a class partaking of the nature of both. It was pointed out that only one township and range in Alabama met the description, and evidence was admitted to prove the grantor owned such lands. In the absence of proof that he owned lands similarly described in some other state, the conveyance was sustained.

In later cases involving similar descriptions, the fact that only one tract in Alabama met the description has not been treated as of controlling importance; and it is now settled that a description by government numbers, giving subdivision, section, and range, but omitting state, county, and land district, may be aided by proof that the grantor owned lands answering to such description in a particular locality. Such deeds are sustained upon further proof that he owned no other lands answering to such description, or in the absence of proof that he did own such other lands. Webb v. Elyton Land Co., 105 Ala. 471, 18 So. 178; De Jarnette v. McDaniel, 93 Ala. 215, 9 So. 570; Head v. Sanders, 189 Ala. 443, 66 So. 621.

In O'Neal v. Seixas, 85 Ala. 80, 4 So. 745, 746, the description was: "A lot of land near Florence, north of the Fair Grounds, containing 35 acres, more or less." The bill set forth a more accurate description with averments that it was the only such lot of which the mortgagor was seized and possessed at the time. The description was held not so vague and indefinite as not to admit of parol evidence of identification of the character alleged.

In Meyer Bros. v. Mitchell, 75 Ala. 475, the description was: "Sixty acres of land, viz., fifty acres Comida and Cone bottom; also, ten acres hill-side woodland [ad] joining the Mitchell tract."

While wholly insufficient on its face to identify the land, averment and proof was permitted in aid of the description to the effect that the land was pointed out, selected, and the purchaser placed in possession. See, also, Sikes v. Shows, 74 Ala. 382.

In Caston v. McCord, 130 Ala. 318, 30 So. 431, the description was: "One and a third (1 1/3) acres of land lying south of W. T. McCord's lot in Albertville, Ala., in Sec. 15, T. 9, R. 4 east." Said the court:

"Standing alone this description fails to distinguish any particular land from other lands in the same locality, it gives no sufficient data wherefrom it could be located by a survey, and refers to no particular appellation, fact, or circumstance which could serve for its identification. According to many authorities, such a defect would be classed as a patent ambiguity, fatal to the conveyance. In this state it has been settled by decisions so numerous as to establish a rule of property that mere indefiniteness in description, though it be such as to render a deed prima facie inoperative, does not necessarily have that effect; that evidence of extrinsic facts, relative to the situation of the parties and the circumstances attending the conveyance, may be looked to for the purpose of identifying its subject matter, and that it is only upon the failure of evidence to give certainty to the description that the instrument will be declared void. Moody v. Railroad Co., 124 Ala. 195, 26 So. 952; Greene v. Dickson, 119 Ala. 346, 24 So. 422, 72 Am. St. Rep. 920; Clement v. Draper, 108 Ala. 211, 19 So. 25; Webb v. Land Co., 105 Ala. 471, 18 So. 178; Homan v. Stewart, 103 Ala. 644, 16 So. 35; De Jarnette v. McDaniel, 93 Ala. 215, 9 So. 570; O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Meyer v. Mitchell, 75 Ala. 475; Chambers v. Ringstaff, 69 Ala. 140."

The rule thus stated was quoted and approved in Minge v. Green, 176 Ala. 343 349, 58 So. 381, 383; also the following from Webb v. Elyton Land Co., supra:

"The rule we have adopted comments itself for its conservatism and justice. Howsoever vulnerable it may be to the attack of technical and refined principles of law upon the subject of ambiguous writings, we are not so well satisfied that it is unwise as to be disposed to depart from it."

In Hamilton v. Stone, 202 Ala. 469, 80 So. 852, 853, the description was: "Forty acres of land joining the John Edge forty." Held subject to parol evidence identifying the 40 covered by the writing.

In Reynolds v. Shaw, 207 Ala. 274, 92 So. 444, 445, the description was: "The following described real estate situated in Madison county, Ala. viz.: Located 1 1/2 mi. east New Market and containing 75 acres more or less." Parol evidence of ownership of a particular tract answering to such description was admitted in aid thereof.

Other cases to like effect are: Cottingham v. Hill, 119 Ala. 353, 24 So. 552, 72 Am. St. Rep. 923; Greene v. Dickson, 119 Ala. 346, 24 So. 422, 72 Am. St. Rep. 920; Homan v. Stewart, 103 Ala. 644, 16 So. 35; Bottoms v. Dykes, 102 Ala. 582, 14 So. 874; Nolen v. Henry, 190 Ala. 540, 67 So. 500, Ann. Cas. 1917B, 792; Brannan v. Henry, 142 Ala. 698, 39 So. 92, 110 Am. St. Rep. 55; Wilkinson v. Roper, 74 Ala. 140.

Cases in which instruments were held void for uncertainty in description include Alba v. Strong, 94 Ala. 163, 10 So. 242; Ala. Min. Land Co. v. Jackson, 121 Ala. 172, 25 So. 709, 77 Am. St. Rep. 46; Rushton v. McKee & Co., 201 Ala. 49, 77 So. 343; Mut. B. & L. Ass'n v. Wyeth, 105 Ala. 639, 17 So. 45; Carling v. Wilson, 177 Ala. 85, 58 So. 417; Shannon v. Wisdom, 171 Ala. 409, 55 So. 102; Lovelace v. M. & E. Ry. Co., 174 Ala. 154, 56 So. 711.

The case of Butler Cotton Oil Co. v. Millican, 216 Ala. 472, 113 So. 529, chiefly relied upon by appellant, deals with an auctioneer's memorandum, and merely declares that lot numbers cannot be aided by a map or plat not connected by any reference thereto in the memorandum. It is supported by numerous cases therein cited. We think it not out of harmony with the long list of cases above reviewed wherein parol evidence was admitted to show the circumstances surrounding the parties with relation to the property in aid of the uncertain description in the writings.

Most clearly and emphatically has it been repeatedly announced that the courts are reluctant to declare written instruments void for uncertainty of description. To this end a liberal application of the maxim, "That is certain which may be made certain," has been approved.

A study of the several matters of description above quoted from the cases discloses that uncertainty of description, such that on the face of the instrument it may apply to more than one parcel of land, does not render the instrument void, if the property may be properly identified by attendant facts, such as the ownership and possession by the grantor of only one parcel answering the description, or by the act of the parties in selecting and placing the vendee in possession of the parcel intended. Certainly no fraud can arise from holding the grantor to land he does own rather than that he does not own.

Two elements of description appear in the deed before us:

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