Kyle v. Jordan

• Decision Date: 21 May 1914
• Docket Number: 578
• Parties: KYLE v. JORDAN.
• Court: Alabama Supreme Court

65 So. 522

187 Ala. 355

KYLE v. JORDAN.

No. 578

Supreme Court of Alabama

May 21, 1914

Appeal from City Court of Gadsden; John H. Disque, Judge.

Ejectment by S.E. Jordan against R.B. Kyle. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

Anderson C.J., and Sayre and De Graffenried, JJ., dissenting in part.

Plaintiff sued for the recovery of five acres of land in the N.W. 1/4 of the S.W. 1/4, section 33, township 11, range 6 E., in Etowah county. As to their paper titles, both plaintiff and defendant claim through one N.M. Thornton.

Plaintiff offered in evidence a deed from said Thornton to one M Clanninger, which was written on a partly printed form, and the descriptive part after the words "of grant" was as follows:

"A lot or parcel of land situate and bound on the Lookout Mountain on the northwest, 40 of the S.W. 1/4 of section 33, it being the said land bought by said Thornton from Swann & Billups, trustees of the railroad company of the Great Southern road, and situated on said 40 as follows Commencing at the S.W. corner of said 40, and adjoining land occupied by John Livingston, it being north of said Livingston house, and running north on the section line, from the corner to the top of the cliff, just south of road leading to the spring near said line, and running along said cliff far enough to meet a line commencing at S.W. corner about 300 feet up said road north until it reaches a path near said pine tree, then paral line to western."

In connection with this document, and as a part of the deed, plaintiff offered a separate paper containing the following written words:

"Corner as described heretofore, north of said boundary to contain 5 acres and must run up the mountain to make 5, and east for quantity to make said 5 acres, and said public road must be kept open, the said Clanninger is to pay said Thornton $15 per acre for said 5 acres of land, and now the said N.M. Thornton reserves from sale all mineral of any and all description, and a right to use it or take it out of said land, and a road to and from said minerals, if there should be any found on said 5 acres of land."

The defendant separately objected to the admission of the deed and of the separate paper because immaterial and incompetent, and because the description is void for uncertainty, and because the separate paper was not made a part of the deed or referred to therein, and because the deed was incomplete. Both documents were admitted, and defendant duly excepted.

Plaintiff identified the documents by the testimony of M. Clanninger, the grantee, who testified that the grantor, Thornton, wrote the deed out himself; that there was not enough room for the description of the property on the one paper, and he finished it out on the other deed; that he then signed the deed and folded the two pieces up together, and handed them to witness. The separate piece of paper was not referred to in the main deed, and there was no signature nor attestation, nor any marks of identification placed thereon. The deed was made in 1883, and the uncle of witness had previously bought the land, and was then living in a house which stood on it, but had not paid for it and had not received the deed. Plaintiff then introduced a deed to himself from Clanninger, conveying by the same description as used in the combined parts of the Thornton deed. Defendant showed a regular paper title back to said N.M. Thornton, originating in a deed from his testamentary executor, covering the north half of said section 33, and in connection therewith offered in evidence the will of Nat Thornton (identified as N.M. Thornton), making his son, H.J. Thornton, executor with full power and authority to sell all lands of the testator; the other terms of the will not being otherwise set out.

Both parties offered evidence tending to show continuous adverse possession of the land in each, plaintiff from 1883, and defendant from 1895.

The trial court admitted, against defendant's objection, certain newspaper advertisements of the executor's sale of said Thornton's land, giving notice that the executor would sell among other tracts described all except 5 acres of the N. 1/2 of the S.W. 1/4, section 33, township 11, range 6 east. The trial court gave, at plaintiff's request, charge 9:

"The court charges the jury that, to acquire title by adverse possession, there must be: (1) An actual occupancy, clear, definite, positive, and notorious; (2) it must be continuous, adverse, and exclusive during the whole period in this case, of at least ten years; (3) it must be with intention to claim title to the land occupied."

The court refused the general charge to defendant.

W.J. Boykin and George D. Motley, both of Gadsden, for appellant.

Hood & Murphree, of Gadsden, for appellee.

SOMERVILLE J.

The most important question raised by the record is whether a separate piece of paper, upon which a grantor has written matter of description, continuous with and supplemental to the description of property embodied in the deed proper, and which though not signed, and not referred to in the deed proper, is delivered to the grantee along with the deed as a part of it. The question assumes, of course, that the deed proper was executed after the supplemental writing was made; and it pre-supposes the use of parol evidence to show that the two writings are contemporaneous as to preparation and delivery.

It is well settled in the law of wills that an extrinsic document cannot be treated as a part of a will unless three conditions are met: (1) There must be a distinct reference in the will to the document sought to be incorporated; (2) the extrinsic document must be so accurately described in the will as to assure its identity; and (3) it must be in actual existence at the time when such reference to it is made in the will. Bryan's Appeal, 77 Conn. 240, 58 A. 748, 68 L.R.A. 353, and note, 107 Am.St.Rep. 34, 1 Ann.Cas. 393; Bryan v. Bigelow, 77 Conn. 604, 60 A. 266, 107 Am.St.Rep. 64, and note. It is also well settled that extrinsic documents referred to in deeds may be resorted to for the identification of the property or estate intended to be conveyed.

With respect to contracts governed by the statute of frauds, the general rule seems to be much the same as in the case of wills. Oliver v. Ala. G.L. Ins. Co., 82 Ala. 417, 426, 2 So. 445; Forst v. Leonard, 112 Ala. 296, 303, 20 So. 587. But in this state, even in the absence of direct reference, parol evidence has been admitted to connect and unify distinct but corelated documents. The question arose in one of our early cases, where it was said:

"From this

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