Thrasher v. Royster

• Decision Date: 04 June 1914
• Docket Number: 641
• Citation: Thrasher v. Royster, 187 Ala. 350, 65 So. 796 (Ala. 1914)
• Parties: THRASHER v. ROYSTER.
• Court: Alabama Supreme Court

65 So. 796

187 Ala. 350

THRASHER v. ROYSTER.

No. 641

Supreme Court of Alabama

June 4, 1914

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

Ejectment by R.T. Royster against Allie Thrasher. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

The deed from Bradford & Tidwell as set out in the record conveying certain land to Susan Rogers simply conveys lots 1 and 2 in block B in the town of Mountainboro. Susan Rogers conveyed to S.J. Brewster by the same description. Brewster and wife conveyed to Royster by the same description; their deed also including other land not involved. J.J. Patterson and wife conveyed to M.T. Thrasher 20 acres in the N. 1/2 of S.E. 1/4, section 20, township 10, range 5 east, containing 20 acres, or less, lots 3, 4, 5, 6, 7, and 8 in block B in the town of Mountainboro. Tidwell and Bradford and wife conveyed to J.J. Patterson the N. 1/2 of S.W. 1/4 of S.E 1/4, section 20, township 10, range 5, containing 20 acres more or less. Stricken from this deed is the following:

"Less lots 1 and 2 in block B, less 1 and 2 in block 12 also including lots 3 and 4 in block 12 in the town of Mountainboro."

And this is the matter stricken as alluded to in the opinion.

Culli &amp Martin, of Gadsden, for appellant.

H.T Bailey, of Attalla, for appellee.

McCLELLAN J.

Statutory ejectment by appellee against appellant. The trial was by the court, without the intervention of the jury. The findings of the court established the basis of the recovery awarded the plaintiff. The property in controversy was described in the complaint as lots 1 and 2, block B, in the Tidwell addition to the town of Mountainboro, a municipality in Etowah county.

The chief matter of appellant's complaint arises from the reception in evidence, and the interpretation, under parol evidence admitted, of the conveyance executed June 26, 1901, by E. and D.A. Tidwell and S.A. Bradford to J.J. Patterson. The original of this instrument is certified to this court in accordance with the rule governing that practice. Among other canceling markings, made in ink, appearing on the face of the instrument, the exception of "lots No. 1 and No. 2 in block B in the town of Mountainboro," with exceptions of other lots similarly referred to, was crossed out in ink. The evidence taken on the trial shows beyond any real basis for doubt that the cancellations particularly mentioned were made after the execution and delivery of the instrument. So the trial court held. The effect upon the issues of this conclusion of fact was to exclude from the conveyance in defendant's line of title the lots in question; provided, the exception undertaken to be made was valid and effective. Over defendant's objections parol evidence was admitted to show that the reference in the exception mentioned was to a plat or map of the Tidwell addition to Mountainboro, and that the lots in suit were those described in the exception.

It is urged that a map or plat of an area of land--made or caused to be made by the owner for purposes of sale or other disposal--cannot be constituted a part of a conveyance of a subdivision or subdivisions thereof, unless the map or plat is acknowledged, certified, and filed as prescribed by the system provided in Code 1896, § 3899 et seq.; Code 1907, § 6028 et seq. This contention is without merit. Thomas v Cowin, 147 Ala. 478, 39 So. 898; East Birmingham Co. v. Birmingham Machine Co., 160 Ala. 461, 473, 49 So. 448; 13 Cyc. p. 634; Reed v. Lammel, 28 Minn. 306, 9 N.W. 858; Sanborn v. Mueller, 38 Minn. 27, 35 N.W. 666; Ferguson v. Winsor, 10 Ont. 13; 2 Devlin on Deeds, § 1020. But in order to make a map or plat a part of such a conveyance there must be a definite, certain reference in the instrument to a certain existent map or plat showing the lot or plat intended to be conveyed. Doe ex dem. Miller v. Cullum, 4 Ala. 576; Birmingham Sec. Co. v. South University, 173 Ala. 116, 121, 55 So. 240; 13 Cyc. pp. 633, 634; 2 Devlin, § 1020 et seq.; Proprietors of Kennebec Purchase v. Tiffany, 1 Greenl. (Me.) 219, 10 Am.Dec. 60; Chesley v. Holmes, 40 Me. 536, 546. Unless there is of file or on record when the conveyance is executed a map or plat to which the numbering of lots made in a conveyance can be certainly referred, the mere numbering of lots in the instrument will not suffice to render a...