Southern Iron & Steel Co. v. Stowers

• Decision Date: 07 November 1914
• Docket Number: 640
• Court: Alabama Supreme Court
• Parties: SOUTHERN IRON & STEEL CO. v. STOWERS.

66 So. 677

189 Ala. 314

SOUTHERN IRON & STEEL CO. v. STOWERS.

No. 640

Supreme Court of Alabama

November 7, 1914

Appeal from Gadsden City Court; John H. Disque, Judge.

Ejectment by W.F. Stowers against the Southern Iron & Steel Company. Judgment for the plaintiff, and defendant appeals. Affirmed.

Hood &amp Murphree, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

SAYRE J.

Plaintiff (appellee) sued the Southern Iron & Steel Company in an action of ejectment to recover all that part of the S.W. 1/4 of N.E. 1/4 and the S.E. 1/4 of N.E. 1/4 of section 8 township 11, range 6 east, that lay south and east of a certain railroad track running through the northeast corner of the first-named and through the northwest corner of the last-named 40-acre tracts. It may be here stated, as an undisputed fact, that the railroad track in the complaint mentioned, and which the Etowah Mining Company had formerly owned and operated in connection with its mines in the vicinity, passed from the northeast into the S.E. 1/4 of N.E 1/4 of section 8, crossed the line between the two 40's and curving around toward the northwest, crossed the north line of the S.W. 1/4 of N.E. 1/4 of said section, thus marking off an area of some three or four acres lying within the curve and partly in each of the two 40's. Defendant's disclaimer reduced the land in controversy to a tract of very irregular shape lying south of the railroad and its right of way, conceded to extend 20 feet to the south of the track, and reaching across the northern part of the S.E. 1/4 of N.E. 1/4 and into the S.E. 1/4 of N.E. 1/4, and containing exactly seven acres less the area to the north of the railroad. Defendant determined for itself this line between its property and the land of plaintiff further to the south in this way: In 1889 G.W. Nixon and his brother W.N. Nixon had acquired the capital stock of the Etowah Mining Company, through whom defendant claimed, as will appear, and about that time one Hays, who had been president of the old corporation, pointed out this line to the witness G.W. Nixon. Later, and, as it appears, about the time defendant got its deed, Nixon pointed out the line to the engineer Burk, who then, as the latter testified, made the map offered in evidence by defendant. The witness Burk further testified that he ran his survey of the line according to the deed from Ramey to Nixon, that he started at the northwest corner of S.E. 1/4 of N.E. 1/4 of section 8 and followed the line of Ramey's original ownership toward the southeast to the public road, thus crossing the railroad which lay about midway between these two points. He went to the public road because, as he says, the road was a part of the deed. But in fact the railroad, and not the public road, was a part of the deed, as will be shown when we come to a statement of the paper title to this property. Thence, it is clearly shown, he followed Nixon's directions back to the neighborhood of the railroad, and thence around south of the road generally, but laying his course in straight lines from point to point, until he reached the last line, the point of departure, the length and direction of which he determined so as to make it fill two conditions, viz.: The tract should extend entirely across the north of the S.W. 1/4 of N.E. 1/4 of section 8 and should contain precisely seven acres. But the deed contained neither of these calls precisely. After hearing the evidence, the court gave the general affirmative charge for plaintiff, and the giving of this charge and some other rulings noted in the bill of exceptions raise the questions to be decided on this appeal.

Both parties traced title to one T.J. Ramey as a common source. The land in controversy and that to the north of the railroad, prior to 1888, were parts of a farm owned by Ramey known as the John I. Tucker place, and until January 25, 1910, Ramey owned the land to the south. The paper titles under which the parties claim respectively are to be stated as follows:

Plaintiff: Deed from Ramey, of date January 25, 1910, conveying to plaintiff the John I. Tucker place, which is otherwise described according to the government survey, "but this deed was not meant to include seven acres of land heretofore sold to Geo. W. Nixon by deed which is of record in probate judge's office in Deed Record Book PP, page 607." An agreement of date October 13, 1888, by which Ramey, in consideration of $175 presently paid, the same being one half of the purchase price, assumed and undertook upon the payment of the other half on January 15, 1889, to convey with full warranty to the Etowah Mining Company land described as follows: "About seven acres out of the north side of the south half of the northeast quarter of section eight, township eleven, range six east."

Said agreement also witnessed that the said Ramey was "to have access to water privileges of water at the spring which runs on said land, and that the said Ramey agrees to give said Etowah Mining Company a wagon roadway from the main county road or valley road along the south side of the branch railroad running to said mining company's mines to a point above said company's storehouse." Deed, of date July 21, 1908, from Ramey to George W. Nixon, conveying:

"Seven acres more or less, situated in the northeast corner of the S.W. 1/4 of the N.E. 1/4 and in the northwest corner of the S.E. 1/4 of the N.E. 1/4, all in section 8, township 11, range 6, Etowah county, Ala. This is the land sold by grantor to Etowah Mining Company, under bond for title or contract in 1888, and deed to said land was never made by grantor, hence this instrument. Said land conveyed lies north and northwest of the railroad leading up to the old Etowah Mines, and includes right of way as road is now located."

This deed was recorded on the day after its date in Book PP at page 607. These two instruments last named were offered, we take it, to identify the land in controversy as not included within the exception contained in the deed of January 25, 1910.

Defendant: The agreement of October 13, 1888, supra, between Ramey and the Etowah Mining Company. Deed, dated July 29, 1893, from Etowah Mining Company to W.N. Nixon in trust for the benefit of the creditors of the company, conveying all its property including:

"About seven acres of land in the northeast corner of the southwest of the northeast quarter of section 8, township 11, range 6, conveyed to said Etowah Mining Company on _____, 1889, by T.J. Ramey, which conveyance is recorded in the office of the judge of probate at Gadsden, to which reference is here made for more full description."

As matter of fact, no such conveyance as that to which the deed of trust refers had been made, and, of course, no such conveyance had been recorded. Deed of July 21, 1908, supra, from Ramey to Nixon. Deed, dated February 23, 1910, from George W. Nixon to Crudup Iron Ore Company, conveying:

"Seven acres more or less, situated in the northeast corner of the S.W. 1/4 of the N.E. 1/4 and in the northwest corner of the S.E. 1/4 of the N.E. 1/4, all in section 8, township 11, south of range 6 east, in Etowah county, Ala. This is the land sold by Thomas J. Ramey to Etowah Mining Company under bond for title or contract in 1888 and deed to said land was never made by said Ramey. Said land conveyed lies north and northwest of the railroad up to the old Etowah Mines and includes right of way as road is now located."

Quitclaim, of date April 1, 1910, from Nixon, individually and as trustee for the Etowah Mining Company, to Crudup Iron Ore Company, reciting previous conveyances by grantor of the same lands to John H. Marbury on October 11, 1899, and by Marbury to Kindrick on July 3, 1907, and by Kindrick to Crudup Iron Ore Company on August 19, 1907, of lands including a parcel described as in grantor's deed of July 21, 1908, supra. Deed from Crudup Iron Ore Company to defendant executed on July 1, 1910, and conveying, along with other properties, a parcel of "seven acres" of land described substantially as in the deed of February 23, 1910, supra, from Nixon to the Crudup Company.

On the stated muniments, read in connection with the location of the railroad and some other relevant facts to be mentioned, it appears that the title to the land in controversy is with plaintiff. Where a deed of bargain and sale on valuable consideration describes an entire tract of land, as in Ramey's deed to plaintiff, excepting a part, and the description of the part is vague and uncertain, the uncertainty affects the exception only, and that, not the grant, will fail. This results from two principles: That a deed delivered must have effect, if possible; and the bias of presumptive construction is inclined against the grantor who assumes to speak. Frank v. Myers, 97 Ala. 437, 11 So. 832; Morris v. Giddens, 101...