Pettit v. Gibson

Decision Date15 November 1917
Docket Number8 Div. 991
Citation201 Ala. 177,77 So. 703
PartiesPETTIT et al. v. GIBSON.
CourtAlabama Supreme Court

Appeal from Circuit Court, Jackson County; W.W. Haralson, Judge.

Ejectment by G.F. Gibson against Frankie Pettit and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

Plaintiff offered deed of W.H. Norwood, commissioner, to plaintiff, of date January 13, 1916, made in pursuance of an attempted sale of said lands for division, and conveying the same to plaintiff. Objection was interposed as stated in the opinion. It is admitted that Dudley, the other defendant, was in possession of the land by permission of Frankie Pettit. It is admitted that the land was at one time the land of Thomas Pettit, who died intestate, leaving surviving him his widow S.A. Pettit, Thomas Pettit, Jr., Mrs. G.F. Gibson, and five other children, as the only heirs at law, and that lands were occupied by him as a homestead; that Thomas Pettit, Jr. married Frankie Pettit, and that Thomas Pettit lived with his father and mother, and after his father died continued to live with his mother on the land, and to care for and support her until she died in 1913, and that he continued to live on the land until he died in May, 1913, and that after he died his widow, Frankie Pettit, and their five minor children continued to live on the land until the present time; that in 1901, his mother, and the brothers and sisters made Thomas Pettit a deed to the land, which deed was introduced in evidence, and which is mentioned in the opinion as conveying the land by government subdivision, and known as the home place of the late Thomas Pettit, deceased. The other facts sufficiently appear.

John B Tally, of Scottsboro, for appellants.

W.H. Norwood, of Scottsboro, for appellee.

THOMAS J.

This is an action of statutory ejectment. The cause was tried by the judge without a jury, the trial resulting in a judgment in favor of the plaintiff for the land sued for, as to which the defendant had pleaded not guilty.

The rule has been announced by our court that, where land is described in a deed by a particular description which is repugnant to the general description therein employed, the particular description must control.

The deed on which the defendant relied for title contained two descriptions; one indicating the land by governmental subdivisions, and the other designating the premises as "the home place of the late Thomas Pettit, Sr. now deceased." The description by government survey must prevail. Garner et al. v. Morris, 187 Ala. 658, 65 So. 1000; Carter v. Chevalier, 108 Ala. 563, 19 So. 798; Guilmartin v. Wood, 76 Ala. 204; Clements v. Pearce, 63 Ala. 284; Sikes v. Shows, 74 Ala. 382; Devlin on Deeds, § 1039; 1 Greenl.Ev. (Redf.Ed.) § 301; Sedg. & Waits, Land Titles, § 458; McIver v. Walker, 9 Cranch, 173, 3 L.Ed. 694; 1 Rose Notes, U.S.Rep., 656.

In Sumner v. Hill, 157 Ala. 230, 47 So. 565, the particular description covered only a part of the land included in the general description; and it was properly held that the general description, in such cases, will prevail. Marshall v. McLean, 3 G. Greene (Iowa) 363; Bott v. Burnell, 11 Mass. 163. The Sumner Case has no controlling effect upon the conveyance on which defendant rested her title and right of possession to the land sued for.

So much for the defendant's title. Yet the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant's title. The bill of exceptions shows that the plaintiff claimed title to the land in question under a purported sale for division among joint owners, by order of the probate court. The decree of confirmation is the final decree in judicial proceedings for the sale of lands. Hutton v. Williams, 35 Ala. 503 76 Am.Dec. 297; Austin v. Willis, 90 Ala. 421, 426, 8 So. 94; Kellam v. Richards, 56 Ala. 238; Gartman v. Lightner, 160 Ala. 202, 49 So. 412; McQueen v. Grigsby, 152 Ala. 656, 44 So. 961; Sayre v. Elyton Land Co., 73 Ala. 85; Code, §§ 5222, 5226. See, also, section 3220 of the Code. No such decree is shown by the bill of exceptions, nor does the order of sale contain the lands described in the pleading in the instant case. The commissioner nominated by the court to make the sale of lands of joint tenants was authorized to sell only the lands described in the order or...

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19 cases
  • City of Mobile v. Chapman
    • United States
    • Alabama Supreme Court
    • January 24, 1918
    ...April 16, 1852. Thus were the titles of the respective parties, to their several allotments, vested by the decree of confirmation (Pettit v. Gibson, 77 So. 703), appears of record in the chancery court of said county, Minute Book D, pp. 603 to 605, inclusive, final record of cause No. 1694.......
  • Ala. Power Co. v. Keller, 2150979
    • United States
    • Alabama Court of Civil Appeals
    • May 5, 2017
    ...thereby conveyed."The principle which we have stated above has its limitations, as shown in several of our cases. In Pettit v. Gibson, 201 Ala. 177, 77 So. 703 [(1917)], it is stated that when there are two suchdescriptions, one indicating the land by government numbers and the other design......
  • Spires v. Nix, 4 Div. 672
    • United States
    • Alabama Supreme Court
    • January 24, 1952
    ...land thereby conveyed. The principle which we have stated above has its limitations, as shown in several of our cases. In Pettit v. Gibson, 201 Ala. 177, 77 So. 703, it is stated that when there are two such descriptions, one indicating the land by government numbers and the other designati......
  • Vauss v. Thomas
    • United States
    • Alabama Supreme Court
    • June 26, 1947
    ... ... decree, upon consideration of which the interlocutory nature ... of the decree of sale is subject to review. Pettit v ... Gibson, 201 Ala. 177, 77 So. 703. All matters of record ... are proper to be considered and constitute a part of the ... decree. 30 C.J.S., ... ...
  • Request a trial to view additional results

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