Thrasher v. Royster

• Court: Alabama Supreme Court
• Writing for the Court: GARDNER, J.
• Citation: Thrasher v. Royster, 201 Ala. 366, 78 So. 222 (Ala. 1917)
• Decision Date: 20 December 1917
• Docket Number: 7 Div. 874
• Parties: THRASHER v. ROYSTER.

78 So. 222

201 Ala. 366

THRASHER v. ROYSTER.

7 Div. 874

Supreme Court of Alabama

December 20, 1917

Rehearing Denied March 23, 1918

Appeal from Circuit Court, Etowah County; John H. Disque, Judge.

Action by R.T. Royster against M.T. Thrasher. Judgment for plaintiff, and defendant appeals. Affirmed.

Sayre J., dissenting. Somerville, Thomas, and McClellan, JJ dissenting in part.

Culli &amp Martin, of Gadsden, for appellant.

Goodhue & Brindley, of Gadsden, for appellee.

GARDNER J.

Statutory action in ejectment by appellee against appellant. The complaint as originally framed sought recovery of lots 1 and 2, block B, of the Tidwell addition to the town of Mountainboro. Upon the reversal of the judgment recovered by plaintiff (Thrasher v. Royster, 187 Ala. 350, 65 So. 796), the plaintiff, at the close of the evidence on the second trial, amended the complaint by adding count 3, which sought recovery for "part of lots known as lots 1 and 2 in block B, in the town of Mountainboro, which lies south of the line between the N.W. 1/4 of the S.E. 1/4 of section 20, township 10, range 5 east, and the S.W. 1/4 of the S.E. 1/4 of section 20, township 10, range 5 east," with other more particular description not necessary to be here set out.

It was averred in said count that the same referred to the identical transaction, property, title, and parties as the original complaint. Motion was made by defendant to strike said count. It is insisted that reversible error was committed in overruling this motion upon the ground that the count added by way of amendment was a complete departure from the original complaint. The added count expressly averred that the property sued for was the same as that for which recovery was sought in the original complaint, and there was no error in overruling the motion upon this ground.

During the progress of the trial plaintiff offered in evidence a certain plat book, which was marked, "Tidwell Addition to Mountainboro," limiting its introduction solely for the purpose of identifying the land, and offered proof to show that plaintiff was in the possession of said lots 1 and 2 in block B of the Tidwell addition in February, 1912, under claim of ownership. Plaintiff claimed title under deed from one Brewster, who was placed in possession of the lots by one Susan Rogers, the latter claiming under deed from the firm known as Tidwell and Bradford, who in January, 1901, placed said Susan Rogers in possession of said lots. The deed under which these respective parties claim title to the property sued for described the property as lots 1 and 2, in block B, in the town of Mountainboro. The evidence for plaintiff tended to show that the lots designated on the diagram as lots 1 and 2, in block B, of the Tidwell addition in the town of Mountainboro, were the lots that plaintiff and his predecessors in title were placed in possession of under their respective deeds, which described the lots only as lots 1 and 2 in block B, in the town of Mountainboro, and that, in fact, the lots were situated in the town of Mountainboro; that in the original survey of said town there was no such thing as block B, or lots 1 and 2 in block B, in said town; and, further, that the property was given in by the respective parties for taxation and assessed for taxes under the description as contained in the deeds, i.e., lots 1 and 2 in block B, in the town of Mountainboro. It is thus seen, therefore, that count 3 described the property in this particular as the same was described in the deed to plaintiff, and his predecessors.

On the former appeal of this cause the complaint described the property as by a certain map or plat known as the Tidwell addition, and the effect of the decision on the former appeal was that, whenever a certain designated map or plat is referred to and becomes a part of the conveyance, parol evidence is not to be received to show that another map or plat, not referred to in the instrument, was the map or plat intended. Here such a situation is not presented, as under the amended complaint and the deeds offered in evidence on the second trial there was no specific reference to any certain map or plat, but merely a description of the property by the number of the lots and the block in which situated in the town of Mountainboro. There is no effort to contradict the recitals of the deed, but merely to aid the description in the deed.

The evidence for plaintiff tended to show that what were designated as lots 1 and 2, in block B, on the map known as the Tidwell addition to the town of Mountainboro, were taxed, known, and dealt with, and held by the parties as lots 1 and 2 in block B, in the town of Mountainboro. We are of the opinion that the evidence of plaintiff was admissible for the purpose of thus identifying the property. Hereford v. Hereford, 131 Ala. 573, 32 So. 620; 2 Dev. on Deeds, 3, § 1016, note 8, and sections 1013A, 1013B, 1013D; Wiley v. Lovely, 46 Mich. 83, 8 N.W. 716; Reynolds v. Trawick, 72 So. 378; Birmingham Sec. Co. v. Southern University, 173 Ala. 116, ...