Walker v. David

• Decision Date: 05 January 1901
• Citation: 60 S.W. 418
• Parties: WALKER et al. v. DAVID et al.
• Court: Arkansas Supreme Court

60 S.W. 418

WALKER et al. v. DAVID et al.

Supreme Court of Arkansas.

January 5, 1901.

Appeal from circuit court, St. Francis county; Hance N. Hutton, Judge.

Action by John H. David and others against India A. Walker and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

John H. David and others brought this action of ejectment against India A. Walker and others to recover a tract of land in St. Francis county, containing 44 acres. The plaintiffs claim the land as heirs of Rebecca Cook, who at one time owned the land, and was in possession of it at her death. During her life, and while she held the land, she and her husband, S. W. Cook, made and recorded a written declaration, adopting her sister Clementine D. David as their heir at law. After the death of his wife, Cook married her sister and adopted heir, Clementine David. Subsequently Cook and his wife, Clementine, sold and conveyed this land to Lymus Walker, and placed him in possession of it. Walker held possession until his death, and the land is now claimed by his widow and children, who are defendants in this action. On the trial there was a finding and judgment in favor of the plaintiffs, from which judgment defendants appealed.

Jno. Gatling, for appellants. Norton & Prewett, for appellees.

RIDDICK, J.

This is an action of ejectment. The plaintiffs claim as the heirs of Rebecca Cook, and also as the heirs of Clementine Cook. The defendants claim under a purchase and deed from Clementine Cook. It is not disputed that Clementine Cook was the adopted heir of Rebecca Cook, the former owner of the land sued for; and the only question presented by the appeal has reference to the deed executed by Clementine Cook and her husband, S. W. Cook, to Lymus Walker, the ancestor of defendants. The plaintiffs contend that such deed is void for uncertainty in the description of the land attempted to be conveyed. The land owned by Mrs. Cook, and which she and her husband sold and undertook to convey to Lymus Walker, was the N. W. ¼ of the S. W. ¼ of section 30, township 5 N., range 3 E., containing 44 acres. The deed from Cook and his wife described the land as "the north part of the west half of the southwest quarter of section 30, township 5 north, range 3 east, containing 44 acres, more or less." If the deed instead of describing the land as the "north part of the west half of southwest quarter of section 30," had described it as the "north half of the west half of southwest quarter of section 30," etc., there would have been no controversy about the description; but as written there is room for doubt as to its validity. But a deed is not to be held void for uncertainty, if by any reasonable construction it can be made available. Varner v. Rice, 44 Ark. 237. It is clear that the parties intended that it should have effect, and that intention should be carried out, if consistent with a reasonable construction of the language used. When the description of the land as given in the deed is doubtful, the court, in their endeavor to arrive at its meaning, should assume the position of the parties. The circumstances of the transaction should be carefully considered, and in the light of these circumstances the words should be read and interrupted. 2 Devl. Deeds (2d Ed.) § 1012.

Now, the circumstances here are that Cook and his wife owned the N. ½ of the W. ½ of the S. W. ¼ of section 30, containing 44 acres, and owned no other land in that section. The land was improved, and nearly all under fence. They sold it to Lymus Walker, and put him in possession of it, describing it in the deed which they executed and delivered to him as the "north part of the southwest quarter of section 30," etc., "containing 44 acres, more or less." Now, apart from the circumstances surrounding the conveyance, a description of that kind shows prima facie an intention to convey 44 acres off the north part of the west half of the quarter section, laid off in the shape of a rectangular parallelogram, with the north line of the...