Kyle v. Jordan

• Citation: 71 So. 417,196 Ala. 509
• Decision Date: 10 February 1916
• Docket Number: 7 Div. 688
• Parties: KYLE v. JORDAN.
• Court: Supreme Court of Alabama

71 So. 417

196 Ala. 509

KYLE v. JORDAN.

7 Div. 688

Supreme Court of Alabama

February 10, 1916

Rehearing Denied March 30, 1916

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

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

McClellan Somerville, and Gardner, JJ., dissenting.

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

Hood &amp Murphree, of Gadsden, for appellee.

MAYFIELD J.

When this case was here on former appeal, we ruled that the supplemental writing, on a separate piece of paper containing additional matter of description to that in the deed, was admissible in evidence as a part of the deed, under the evidence as it then appeared of record. See 187 Ala. 355, 65 So. 522. The authorities on the subject of the admissibility in evidence of separate writings, not signed, as parts of deeds or wills, were reviewed at some length; and in holding the separate writing in this case to be admissible as supplementing the deed in question, the following rule, to which we yet adhere, was laid down:

"We hold that whether or not a supplemental writing, not referred to nor identified in the executed deed, can be offered and received in evidence as a part of the deed must depend upon the considerations: (1) It must be written contemporaneously with the deed by the grantor or his draftsman; (2) it must be physically before the grantor when he executes the deed; (3) it must be delivered to the grantee or his agent along with and as a part of the deed; (4) it must not contradict any of its expressed terms; and (5) it must, upon its face, be continuous, coherent, and consistent with that part of the deed which it purports to supplement, that is, there must be internal evidence of the identity and unity of the two writings as constituting a single transaction."

On further consideration we are now convinced that we were wrong in holding the separate writing admissible as a part of the deed. We now hold that the record in this case does not bring the separate writing within either the fourth or the fifth qualification of the rule above quoted from the opinion on the former appeal. There are contradictions, in express terms, between the recitals in the deed and those in the separate writing, as to both the parties to, and the consideration for, the deed. In the deed proper the grantee is described as M. Clonninger, and the consideration is stated to be $15 per acre, cash in hand paid; while in the separate writing the recital is that L. Clonninger is to pay $15 per acre. These are certainly contradictions in express terms. We are now of the opinion that there is no internal evidence of the identity and unity of the two writings as constituting a single transaction, sufficient to dispense with a reference in the deed to the separate writing. The deed on its face indicates no reference to this or any other separate writing as being supplementary thereto. While it is possible, or even probable, that both the deed and the separate writing may relate to, or attempt to describe the same piece of land, yet there is no reference in the deed to any separate writing necessary to complete it, and nothing on the face of the papers to show that one is contemporary to the other. The evidence to this end is wholly oral, and therefore inadmissible and unavailing to unify the two writings.

We still adhere to the former holding of this court that the rule is not absolute that the several papers shall, on their face, indicate a reference to each other, and that parol evidence may be admissible, in some cases, of contemporaneous facts, to show connection between the several writings; but to allow such proof, there must be some internal evidence of the identity and unity of the several writings as constituting a single transaction. This question was discussed, and the authorities were reviewed at some length, in Bryan's Appeal, 77 Conn. 240, 58 A. 748, 68 L.R.A. 353, 107 Am.St.Rep. 34, 1 Ann.Cas. 393, it was there said:

" 'First, the paper must be in existence at the time of the execution of the will; and, secondly, the description must not be so vague as to be incapable of

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