Klepac v. Fendley

• Decision Date: 22 January 1931
• Docket Number: 1 Div. 584.
• Citation: Klepac v. Fendley, 222 Ala. 417, 132 So. 619 (Ala. 1931)
• Parties: KLEPAC v. FENDLEY.
• Court: Alabama Supreme Court

132 So. 619

222 Ala. 417

KLEPAC v. FENDLEY.

1 Div. 584.

Supreme Court of Alabama

January 22, 1931

Rehearing Denied March 12, 1931.

Appeal from Circuit Court, Clarke County; T. J. Bedsole, Judge.

Action of ejectment by S. C. Fendley against Frank Klepac. From a judgment for plaintiff, defendant appeals.

Affirmed.

Quincey W. Tucker and Woodford Mabry, both of Grove Hill, for appellant.

Adams &amp Gillmore, of Grove Hill, for appellee.

FOSTER J.

This is a statutory action for recovery of land. There was no demurrer to the complaint, but defendant pleaded not guilty and thereby admitted possession of the land as described in the complaint.

The court gave the general charge for plaintiff. Defendant having sued out this appeal contends that the court erred in admitting in evidence a deed to plaintiff with the same description as that in the complaint, and in giving the affirmative charge for plaintiff. The court admitted parol evidence in aid of the description in the deed. Unless that description is void, as a matter of law, in the light of the attending facts disclosed by the evidence, the deed was of course properly admitted. And if properly admitted, the effect was to prove title in plaintiff, and justified the affirmative charge for plaintiff for such conclusion would also determine that the description in the complaint is not so indefinite as not to be sufficient to support a verdict and judgment.

Upon that question the result is not the same as when there is a demurrer to the complaint. For upon demurrer all intendments are against the sufficiency of the complaint. But when the inquiry only arises upon its sufficiency to sustain a judgment, all reasonable intendments are indulged to support the judgment. Parker v. Jefferson County, 209 Ala 138, 95 So. 364; Lessley v. Prater, 200 Ala. 43, 75 So. 355.

It is necessary, however, in order to support the judgment that the description be of such nature that the sheriff, unaided by such character of evidence aliunde, as calls for the conclusion or discretion of the sheriff, as in the nature of a judicial act, can locate the land, with the help of such existing things as recorded instruments, maps, monuments, and other objects which may be located by the data furnished by the description itself. Lessley v. Prater, 200 Ala. 43, 75 So. 355; Bradford v. Sneed, 174 Ala. 113, 56 So. 532; Carroll v. Faucett, 206 Ala. 526, 91 So. 73; Finney v. Baker, 201 Ala. 521, 78 So. 875; Riddle v. Hanson, 208 Ala. 474, 94 So. 729; Parker v. Jefferson County, supra; Martin v. Baines, 217 Ala. 326, 116 So. 341; Cabaniss v. Huntsville, 217 Ala. 678, 117 So. 316; East v. Karter, 215 Ala. 376, 110 So. 610; Id., 220 Ala. 511, 125 So. 655.

In construing the sufficiency of the description in the complaint as well as the same in the deed, we may refer therefor to such instruments, maps, monuments, and other objects as the evidence discloses, to which reference is made in the description. It shows that the starting point is on Carroll street and sixty-one feet and six inches from the northeast corner of lot 144, according to the old plat of the town. This lot, according to that plat, has two corners on Carroll street, though neither may be accurately defined as the northeast corner. Nor is there shown by the plat any other corner of the lot properly so defined. The lot does not extend so that there is a corner at that point of the compass. But of the two corners on Carroll street, one is more in a northeasterly position than the other. With the former as the starting point, the details of the description, by metes and bounds, furnish sufficient data to locate with some degree of accuracy a small tract situated in and a part of lot 144. All the features of the description by metes and bounds are consistent with that construction of it. Such corner being the existence of a fact shown on a map referred to in the description, the sheriff may consider it, for to do so does not require any particular conclusion in the nature of a judicial act. We think therefore that the description by metes and bounds, thus aided, is not void for uncertainty.

It is stated further in the description that it is a portion of lot 145, but that it lies between...