Smith v. Harbaugh

• Decision Date: 19 May 1927
• Docket Number: 1 Div. 436
• Citation: 112 So. 914,216 Ala. 202
• Parties: SMITH v. HARBAUGH.
• Court: Alabama Supreme Court

112 So. 914

216 Ala. 202

SMITH v. HARBAUGH.

1 Div. 436

Supreme Court of Alabama

May 19, 1927

Appeal from Circuit Court, Mobile County; Claude A. Grayson, Judge.

Bill in equity by Annie H. Smith against E.A.C. Harbaugh. From a decree for respondent, complainant appeals. Reversed and rendered.

Harry T. Smith & Caffey, of Mobile, for appellant.

Smiths Young & Johnston, of Mobile, for appellee.

BOULDIN J.

The bill is framed as a statutory bill to quiet title. The matter involved is the location of a disputed boundary line between adjoining owners of city lots. Under the issues made by bill and answer and under the evidence the question was litigable by bill to quiet title, or by statutory bill to settle and establish disputed boundaries.

The title of complainant, Mrs. Annie H. Smith, is derived from voluntary partition proceedings between tenants in common resulting in a partition deed to her as one tenant in common and the title of respondent through mesne conveyances from H Walter Byrne, who, as nominee of the other tenants in common, received a partition deed from Mrs. Smith and her husband. These partition deeds were contemporaneous and parts of the same transaction.

Among the properties partitioned were lots 6, 7, 8, and 9, as shown by a recorded plat of Glendale Park in Mobile county.

In the partition deed to Mrs. Smith, the complainant, her property is thus described:

"That certain lot or parcel of land with the improvements thereon, situate, lying and being in the city and county of Mobile, and state of Alabama, to wit:

"Beginning at the northwest corner or intersection of Tennessee street and Michigan avenue as now located and running thence westwardly along the north line of Tennessee street one hundred and thirty-five (135) feet to a point, thence running northwardly and parallel with Michigan avenue sixty-four (64) feet to the north line of lot number nine (9), thence running eastwardly along said north line of said lot number nine (9), one hundred and thirty-five (135) feet to Michigan avenue, and thence running southwardly and along the west line of Michigan avenue sixty-four (64) feet to the place of beginning. Being a parcel of land fronting sixty-four (64) feet on Michigan avenue, and having one hundred and thirty-five (135) feet depth on Tennessee street, and being otherwise known as lot number nine (9), in block number thirteen (13) of the Glendale Park according to a map or plan of the Glendale Park filed in the office of the judge of probate court of Mobile county, Alabama, on the 6th day of February 1890 and recorded in Deed Book 61 N.S. pages 316 and 317.

"Together with all the improvements and appurtenances thereunto in any wise belonging."

On the face of it, this deed presents a dual description of Mrs. Smith's property, one by courses and distances from an initial point, and the other by a reference to a numbered lot as shown by a recorded plat.

Now, the plat shows lot No. 9 to have a frontage of 52 feet on Michigan avenue, 12 feet short of the other calls. Hence, this lawsuit as to the ownership of the 12-foot strip running west and parallel with Tennessee street. We have a case of two variant descriptions of equal certainty, one by courses and distances from an initial point incorporated in the deed, the other by courses and distances from the same initial point incorporated by reference to the plat. One description is more inclusive than the other.

Appellee reminds us of the rule that in matters of description, calls for natural or artificial monuments dominate course and distance. This means monuments on the ground selected and designated in the deed as corners, etc. It has no reference to lines and figures on a plat. These become a part of the description by reference as if the courses and distances shown thereby were set out in the deed. 2 Devlin on Deeds, § 1022.

The explanation of Harry T. Smith, the husband of complainant who negotiated the partition, is this: Lot No. 9 was the south lot of the lands being divided. It was then improved with a two-story building on the corner at the intersection of Michigan avenue and Tennessee street, and three one-story frame buildings of like design all fronting Tennessee street. It was agreed by the parties on the ground that Mrs. Smith take the property covered by the buildings and extending back to a fence just in the rear of them. In preparing the deeds a question arose as to the true location of the southeast corner of lot No. 9; that is, where was the intersection of the streets. One view was that the walls of the corner building were flush with the property line on both streets, and the other that the property line extended across the sidewalk to the middle of a ditch along Tennessee...