Nunnery v. Ford

• Decision Date: 02 March 1908
• Court: Mississippi Supreme Court
• Parties: THOMAS NUNNERY v. THADDEUS F. FORD

45 So. 722

92 Miss. 263

THOMAS NUNNERY v. THADDEUS F. FORD

Supreme Court of Mississippi

March 2, 1908

March 1908

FROM the circuit court of Amite county, HON. MOYSE H. WILKINSON Judge.

Nunnery appellant, was plaintiff in the court below, and Ford appellee, defendant there. From a judgment, directed by the court, in defendant's favor plaintiff appealed to the supreme court.

In January, 1900, Ford, appellee, being the owner of the south half of the southeast quarter of section 16, township 4 range 4, in Amite county, eighty acres, conveyed to one Ethridge land described in his deed of conveyance as "south half of the southeast quarter, except two acres, more or less, lying on north side of Little creek running west on north side of said described land above mentioned, of south half of southeast quarter of section 16, township 4, range 4, containing eighty acres, more or less," in the county mentioned. In 1906 Ethridge conveyed the same land to appellant, Nunnery, the deed describing it in the same way. There are eleven acres of land, in the eighth of the section, north of the creek, and Ford claimed the whole of the eleven acre tract as excepted from his deed to Ethridge. Nunnery, appellant, asserting title to the whole eighty acres in the section, instituted an ejectment against Ford for the eighty acres. Defendant's plea limited his defense to the eleven acres. The trial court sustained defendant's motion to exclude the evidence, and directed a verdict and judgment in favor of the defendant, Ford.

Reversed and remanded.

L. H. McGehee, for appellant.

If a patent ambiguity exists in the description of the land, no evidence can be admissible to identify the property excepted, and the reservation must be held to be void. If, however, the ambiguity is latent, and there are eleven acres north of the creek, then evidence aliunde is admissible to show such fact, and to show, further, that the reservation is void, notwithstanding it may appear on the face of the deed.

If one half of the whole eighty acre tract were north of the creek, appellee certainly could not claim the entire half by virtue of the exception of two acres; nor could he, in such case, claim the two acres, because in such event the description would be void for uncertainty.

As authority for the appellant's contention, see McAllister v. Honea, 71 Miss. 256, 14 So. 264; Spears v. Robinson, 71 Miss. 774, 15 So. 111; Tierney v. Brown, 65 Miss. 563, 5 So. 104; Price v. Ferguson, 66 Miss. 404, 6 So. 210.

J. T. Lowrey, for appellee.

It is clear that the intention of both Ford and Ethridge, in executing the deed of conveyance in 1900, was to reserve all land lying north of the creek. And if the deed shows clearly the intention of the parties, parol evidence is inadmissible to change its terms. The reservation in the deed is susceptible of only one meaning. There is no ambiguity. Anderson's Law Dict., 54.

An exception is a clause of a deed whereby the grantor excepts something out of that which he had before granted by the deed, and to a good exception seven things must concur: (1) the exception must be by apt words; (2) it must be part of the thing granted, and not of some other thing; (3) it must be a part of the thing only, and not of all, the greater part or the effect of the thing granted; (4) it must be such thing as is severable from the thing which is granted, and not...