Lessley v. Prater

• Decision Date: 26 April 1917
• Docket Number: 5 Div. 647
• Citation: 200 Ala. 43,75 So. 355
• Parties: LESSLEY v. PRATER.
• Court: Alabama Supreme Court

75 So. 355

200 Ala. 43

LESSLEY v. PRATER.

5 Div. 647

Supreme Court of Alabama

April 26, 1917

Appeal from Circuit Court, Coosa County; S.L. Brewer, Judge.

Forcible entry and detainer by W.B. Prater against J.J. Lessley. Judgment for plaintiff for a portion of the land, and defendant appeals. Affirmed.

The land described in the complaint is a certain tract of land situated in Coosa county, Ala., to wit: About 155 acres of land in section 2, township 23, range 17, and known as the R.A. Lessley homestead, and more particularly described as the E. 1/2 of S.W. 1/4, S.E. 1/4 of N.W. 1/4, S. 1/2 of N.E 1/4 of N.W. 1/4, and 15 acres in the N.W. 1/4 of S.W. 1/4 north of the Corben road, on which the old Lessley homestead is located.

Riddle & Riddle, of Talladega, for appellant.

George A. Sorrell, of Alexander City, for appellee.

McCLELLAN J.

In the comparatively recent decision of Bradford v. Sneed, 174 Ala. 113, 115, 56 So. 532, this court announced, in effect, that there is a material difference between an uncertainty in description of land in a deed that will not suffice to justify the court in declaring the deed void for uncertainty in that respect and an uncertainty in a verdict or judgment that will require the court to declare the verdict or judgment void on that account. It may be that such a conclusion could be soundly deduced from the deliverances made in Jinkins v. Noel, 3 Stew. 60, 75, 85, and Sturdevant v. Murrell, 8 Port. 317. In both of these cases the fact was noted that the English practice of permitting the plaintiff to direct the sheriff of what lands he should be put in possession under the judgment, upon penalty of being held a trespasser if the possession thus given or taken was of more land than the recovery embraced was not recognized in this state. Neither of the leading writers on Judgments (Black and Freeman) take any account of the distinction outdrawn in Bradford v. Sneed, supra. See 1 Freeman on Judgments, § 50c; 1 Black on Judgments, § 117. The distinction, predicated of a contrast, thus noted in the Bradford Case, may be more academic, or argumentative, than of practical service. Regardless of the acceptance or rejection of this distinction, the inquiry must ever be, in cases where the sufficiency of the description of land in a complaint, verdict, or judgment is brought into question through direct, not collateral, attack (Wright v Ware, 50 Ala. 549; Leath v. Cobia, 175 Ala 435, 440, 57 So. 972; Cotton v. Holloway, 96 Ala 544, 550, 551, 12 So. 172), whether the property which is the subject of the averment or recital is so designated as to identify it, for these essential purposes, viz. that the defendant may be advised of what particular land he is called to defend and the court, with respect to what particular land its powers are invoked, that the execution of such judgment as may be rendered may be effected, and that the judgment entered may be sufficiently definite as to its subject-matter, the particular land, to accomplish the law's aim through the application of the doctrine of res adjudicata. According to Freeman the required degree of certainty in the description of land is such as will "leave its identity free from doubt." According to Black, the required degree of certainty is such as will identify the property "without reasonable opportunity for mistake." According to Eng.Rul. Cases, vol. 3, p. 595, the requirement is said to be that the judgment in this respect, as in other of its features, must be "reasonably certain in its terms." The text in 23 Cyc. p. 793, is to the same effect as Freeman's quoted statement. The statement of the pertinent text in 11 Ency.Pl. & Pr. pp. 954, 955, might, in some of its parts, be read in approval of a more exacting degree of certainty; and, if so, its conclusion would conflict with the pronouncement made in Jinkins v. Noel, supra, that scrupulous accuracy is not necessary. Freeman points out, at the section cited, that the California court accepted, but later repudiated, the extreme rule "that the description of land in a judgment must be perfect in itself, and could not [cannot] be aided by a reference in the judgment to any paper or record not constituting a part of the judgment roll in the case in which the judgment was rendered," thus excluding any recourse to define, to identify the subject of the adjudication through reference to the other aids to make certain the description of the property intended to be affected by the judgment. Notwithstanding the statement reproduced from Jinkins v. Noel in the Bradford Case, to the effect that the ascertainment of the presence of the requisite certainty in the description of the precise lot or tract recovered is limited to the verdict, judgment, and declaration, when appropriate reference is made to the description in the declaration; this court in later cases has recognized the efficacy of a reference in the complaint, verdict, or judgment to "some monument, or actually existing thing," as appropriate descriptive terms in such solemn affairs, concluding in the case to be first cited below with the affirmation that reasonable certainty in a verdict is the law's demand. Bennet v. Morris, 9 Port. 171, 173; Henley v. Bank, 16 Ala. 552, 559; Hurt v. Freeman, 63 Ala. 335, 336; Tenn. R.R. Co. v. East Ala. Ry. Co., 75 Ala. 516, 523, 51 Am.Rep. 475; Carlisle v. Killebrew, 91 Ala. 351, 8 So. 355, 24 Am.St.Rep. 915; Carter v. Smith, 151 Ala. 610, 44 So. 424; Rayburn v. Elrod, 43 Ala. 700, 704. While it must be regarded as settled with us that reference may be efficiently made, in describing property in court proceedings, to existing things, such, we think, as recorded instruments, maps, and the like, as well as complete areal entities as are known in...