Lovelace v. Montgomery & E. Ry. Co.

• Decision Date: 23 November 1911
• Citation: 174 Ala. 154,56 So. 711
• Parties: LOVELACE v. MONTGOMERY & E. RY. CO.
• Court: Alabama Supreme Court

56 So. 711

174 Ala. 154

LOVELACE v. MONTGOMERY & E. RY. CO.

Supreme Court of Alabama

November 23, 1911

Appeal from Circuit Court, Barbour County; M. Sollie, Judge.

Action by the Montgomery & Eufaula Railway Company against E. M Lovelace. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Peach &amp Thomas, for appellant.

A. H Merrill & Son and G. L. Comer, for appellee.

MAYFIELD J.

The action is the statutory one in the nature of ejectment.

The complaint as last amended consisted of two counts denominated "amended counts 1 and 2." Demurrers were interposed and overruled to both of these counts. The chief ground of demurrer insisted upon is that each count was too indefinite and uncertain as to the description of the land sued for.

We do not think either count was subject to demurrer for that reason. The lands described could be located or identified by the description in either count--which is all that is required. T. & G. R. R. Co. v. East Ala. R. Co., 75 Ala. 522, 51 Am. Rep. 475; Jinkins v. Noel, 3 Stew. 60; Griffin v. Hall, 115 Ala. 482, 22 So. 162; O'Neal v. Seixas, 85 Ala. 80, 4 So. 745.

Count 2, however, is wholly bad, for the reason that it contains nothing but the description of the lands, and the parties.

It may be that plaintiff's deed, which was its only claim of title, in connection with the Guice contract to which it made reference, and the deed introduced by defendant, were sufficient to show that the land sued for was that conveyed by plaintiff's deed; but it is very certain that it was not so conclusively and indisputably shown that the court could direct the verdict. Plaintiff's deed would have been void for uncertainty of description, of course, but for the reference to the Guice contract of sale and map for the description of the land intended to be conveyed. Counsel for appellee are in error in thinking that the description in the Guice contract of sale, and the map attached, neccessarily and certainly described the land sued for. The map is far from being self-explanatory in such degree as to identify the land sold, or to identify it, even if it be taken in connection with the contract adduced to show that it was of, or included, the identical land sued for; and no evidence whatever was offered to explain the map, such as the directions of the compass, distances, etc., nor to designate the land sued for or attempted to be described in the contract of sale to which it is attached. The only description, therefore, of the land conveyed to plaintiff, is that in the Guice contract of sale and the map attached--which is far from being definite and certain. The description in this contract is as follows: "Fifteen acres of land adjacent to and south of the right of way of the South Western Railroad Company, and fronting on the Chattahoochee river about one thousand and forty or fifty feet, being about three hundred and seventy-five feet across, on the river front, lying in said state and county, and being marked off and laid out within the blue lines on the diagram hereto attached and marked 'Exhibit A.' "

The reporter will insert a copy of the map referred to in his report of this case.

(Image Omitted) It will be observed that the description in the contract fails to show whether the land sold is on the east or the west bank of the river, if it runs east or west. Nor does the map show with certainty the direction of the river or of the railroad forming the boundaries of the land. There are two dim pencil tracings on the original map sent up for our inspection, which were probably intended to show the direction of the compass and would therefore, in some measure, explain the map; but in the copy of the map shown in the transcript these pencil tracings do not appear, and the two appearing on the original do not exactly correspond as to direction, though they may be said to do so in the main.

The land attempted to be described in the contract, in the complaint, and in the judgment, is evidently a quadrangle; but the map shows no such land traced or platted. It shows one piece of land indicated to contain 15 acres; but it is a triangle, two sides of which are straight lines, and the third, a curved line; but the dimensions of this triangle are not given otherwise than might be indicated by the area. Neither side of it touches the bank of the river.

The result is that we are wholly unable, with the entire record containing all the evidence, pleadings, and original map, to locate the land conveyed to plaintiff or recovered in this action. It is very probable that the sheriff, with the aid of a surveyor, could locate the land sued for, and that recovered; but he could not so locate that described in the deed or in the Guice contract, without the aid of some evidence extrinsic to this record. The map, without the aid of some extraneous evidence, to show the distances and the...