Nolen v. Henry

• Decision Date: 17 December 1914
• Docket Number: 552
• Citation: 190 Ala. 540,67 So. 500
• Parties: NOLEN v. HENRY.
• Court: Alabama Supreme Court

67 So. 500

190 Ala. 540

NOLEN v. HENRY.

No. 552

Supreme Court of Alabama

December 17, 1914

Appeal from Chancery Court, Tallapoosa County; W.W. Whiteside Judge.

Bill by R.L. Henry against Roy Nolen to correct description in deed. From a decree overruling demurrer to the bill, respondent appeals. Affirmed.

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

Lackey & Rowland, of Ashland, for appellee.

GARDNER J.

Bill filed for reformation of description in certain deeds referred to therein. Woodlawn Realty & c. Co. v Hawkins, 65 So. 183. Complainant claims title through a corporation known as Big Hillabee Power Company. It is shown: That one J.H. Chisolm, who was the owner of the land, conveyed by deed of date May 19, 1909, in execution of which deed his wife, Rebecca Chisolm, joined, to said Big Hillabee Power Company a tract of land consisting of 10 acres, to be laid off so as to include a certain shoal on Big Hillabee creek known as "Lindsey Shoal." That said Chisolm owned a large body of land surrounding the particular land. The description in said deed, a copy of which is made Exhibit A to the bill, is as follows:

"Ten acres of land lying and being in sections 16 and 22, to be laid off so as to include Lindsey shoals on Big Hillabee creek, said land to be surveyed and platted by J.R. Hall, and when surveyed by him and platted, a certified plat by said J.R. Hall shall be and become a part of this deed for the purpose of making the description perfect, and shall be attached to this deed and recorded as a part of this deed, with full water rights to erect a dam of sufficient height to back water to property sold Mr. Pinckard, at Chisolm's Bridge over said creek, with full rights, privileges, easements to, of the use of said stream for the purpose of a water power, said lands and water rights lying and being in township 23 of range 22."

The misdescription sought to be corrected, and the averments in connection therewith, are found in section 12 of the bill, as follows:

"12. Orator further shows to your honor that the Lindsey shoals on Big Hillabee creek, while the same were situated on the lands of J.H. Chisolm, and while the same is near the section line between section 22 and 15, that part of the same is in section 16, and that 10 acres could not be laid off in section 16 and 22 so as to include Lindsey shoals, and while the same is described in the deed from Chisolm and wife to the Big Hillabee Power Company and from the Big Hillabee Power Company to orator as being in section 16 and 22, that it was the intention of the parties in each instance to convey 10 acres of land so situated that the same should be available for the purpose of building a power plant on the said Lindsey shoals, and that neither the agent of the power company nor J.H. Chisolm knew the exact lines where the shoals were located, and that it was by mistake of the parties that the same was described as being in section 16 and 22, and that the description should have been in section 15, and that it was the intention of the vendor to convey 10 acres of land in section 15, which would include the Lindsey shoals, and it was the intention of the vendee to buy 10 acres of land in section 15 including Lindsey shoals, but by mistake as to where the lines were the land described as being in section 16, which by reason of that fact the line of section 22 was so near to the shoals that it was deemed probable by the parties at that time that some part of the 10 acres would necessarily be in section 22; that the description section 22 was put in the original deeds in order that there might be perfect and complete room for the laying off of 10 acres to be used for the best advantage in the development of the water power at Lindsey shoals. And orator avers that the said Roy Nolen was fully informed by the record of said deed that it was the intention and purpose of the parties to said deed that said 10 acres of land should be so laid off as to include such land as would be best suited to the building of a plant for the development of the water power at Lindsey shoals."

The bill further shows that J.H. Chisolm died some time subsequent to May 19, 1909, and that his wife, Rebecca Chisolm, became the owner, either by inheritance from, or devise by, the husband, as we construe the bill, of all the lands belonging to her said husband; that prior to February 28, 1913, Rebecca Chisolm died, and that in due course of administration the lands of her said estate were sold by the administrator under the order of the probate court, and that as a part of the land ordered to be sold by said administrator was the west half of section 15, township 23, range 22, in Tallapoosa county, on which lands the Lindsey shoals were situated, and at said administrator's sale respondent became the purchaser of said lands, together with other lands then sold, the said 10 acres conveyed by J.H. Chisolm and wife to the Big Hillabee Power Company was not excepted therefrom, but said lands were sold in a body; that the said deed to said power company was on record in the probate office of Tallapoosa county at the time of said administrator's sale.

It is alleged that the said power company, in March, 1913, conveyed to complainant said lands sold to it, by use of the same description as that contained in the deed by J.H. Chisolm and wife to it, and that at that time the surveyor had not filed a plat or description of the 10 acres as provided for in said deed; that in June, 1913, complainant, desiring to perfect said description, procured J.R. Hall, named in the deed to the power company, to make a survey, laying off 10 acres of said lands so as to include the Lindsey shoals, and make a plat of the same, which said Hall did and filed in the probate office, and same has been recorded as a part of the deed.

The question considered and treated as of prime importance by counsel has reference to whether or not the description in the deed sought to be reformed is so uncertain as to render the same absolutely void.

It is, of course, well settled that the law leans against the destruction of a deed for uncertainty of description, but will construe the deed, where it can be done consistently with legal rules, so as to give effect to the intention of the parties, and not to defeat it. "Every deed *** ought to be so construed, if it can, that the intent of the parties may prevail, and not be defeated." Pollard v. Maddox, 28 Ala. 321.

In Cottingham v. Hill, 119 Ala. 353, 24 So. 552, 72 Am.St.Rep. 923, it was said:

"This court has gone as far as any other in admitting parol evidence to sustain the validity of deeds assailed upon the ground of indefiniteness in the description of the land; but the rule which we have adopted promotes justice, and does not open the door to fraud and perjury. In all cases the writing has been sufficient to show a bona fide sale and conveyance was intended by the parties, and when this appears no injustice results if by parol evidence the precise property intended to be conveyed can be clearly identified."

"Although a deed may be void on its face for want of a definite description of the land, a court of chancery will reform the deed upon proper allegata of extrinsic facts, and their proof." Greene v. Dickson, 119 Ala. 346, 24 So. 422, 72 Am.St.Rep. 920.

"The general rule, everywhere recognized, is that mere verbal declarations as to what was intended, are not admissible in explanation of the terms of the writing itself. A just exception to this rule, however, is found in parol evidence going to the identification of the subject-matter, a principle which seems to have been much favored by the past decisions of this court." Meyer Brothers v. Mitchell, 75 Ala. 475.

"A description which furnishes the means of making it certain by proof is sufficient." Lodge v. Wilkerson, 165 Ala. 302, 51 So. 609.

The description here involved shows the quantity of land to be conveyed and the purpose for which it was purchased. It is by no means what might be termed by some a "roving 10 acres," but its location is fixed on a certain creek so as to include Lindsey shoals. A more definite and particular description is fixed and agreed upon by the parties, as shown in the deed itself, by the agreement for a survey to be made by one Hall, the land laid off in a plat, and...