Webb v. Elyton Land Co.

• Decision Date: 04 February 1895
• Citation: 105 Ala. 471,18 So. 178
• Parties: WEBB v. ELYTON LAND CO.
• Court: Alabama Supreme Court

18 So. 178

105 Ala. 471

WEBB v. ELYTON LAND CO.

Supreme Court of Alabama

February 4, 1895

Appeal from city court of Birmingham; H. A. Sharpe, Judge.

Suit to quiet title by the Elyton Land Company against Norman Webb. Decree for complainant, and defendant appeals. Affirmed.

Brooks & Brooks and Smith & Lowe, for appellant.

Alex T London, for appellee.

HEAD J.

This is a bill by the Elyton Land Company against Norman Webb to quiet titles to the S.E. 1/4 of N.W. 1/4, section 6, township 18, range 2 W., in Jefferson county, Ala. The land lies on what is known as "South Highlands," in and adjacent to the city of Birmingham. Many years ago, Elija Brown died owning a body of about 400 acres of land, including that in controversy. He resided on that tract all his life, or for many years. He left his widow, Nancy Brown, and a son, W. W Brown, besides other children. By his last will he devised all his land to his widow, for life, with remainder, in fee to his son, W. W. Brown. Both devisees still survive. On January 10, 1870, W. W. Brown conveyed his estate in the land in controversy, with warranty, to Joab Bagley. On September 24, 1872, Bagley and wife sold and conveyed to the complainant, the Elyton Land Company. On November 15, 1886, the widow, Nancy Brown, conveyed her estate in this land to the complainant. On July 23, 1883, W. W. Brown and wife executed a deed to the 40 acres in dispute to said Norman Webb for the consideration of $100, purporting to convey the entire fee; and he (Webb) now asserts title, by virtue of this deed, to an estate in remainder, dependent upon the life estate of Nancy Brown, paramount to the title of the Elyton Land Company. There are three defenses set up in the answer, and relied upon on the trial: First, that the deed of W. W. Brown to Joab Bagley, relied upon by the complainant, is in fact no deed, but a forgery, and, if signed by Brown, there was no attesting witness, nor acknowledgment, in consequence of which the instrument is inoperative as a conveyance; second, that the deed is void on its face, for insufficiency of description of the land, which is described only by sectional subdivision, township, and range,-omitting the county, state, and land district in which the land is situated; third, that the respondent is a purchaser for valuable consideration, without notice.

1. We have carefully examined the evidence, and have no doubt that the deed to Bagley is genuine, and was executed, attested by a subscribing witness, and delivered, on the day of its date. This is so well established that it is unnecessary to go into the evidence, or enter upon any discussion of it.

2. The Bagley deed possesses the infirmity in the description of the land above mentioned. The evidence shows, without dispute, that W. W. Brown, at the date of the conveyance, owned land lying in Jefferson county, Ala., conforming, in point of section, township, and range, to that described in the deed, and had owned it since the death of his father, years before; and it is shown by the testimony of a number of witnesses-his relatives, and intimate acquaintances of long standing-that he was never known to own, or claim to own, any lands in any other county or state. He had lived all his life very near to the land in dispute, in Jefferson county; and his grantee, Bagley, was an old resident and citizen of that county, owning lands therein located, not remote from the land in question. These facts raise the question of law whether or not the insufficiency apparent upon the face of the deed may be cured by reference to the extrinsic circumstances stated. We feel constrained to hold that the question has been settled by past adjudications of this court, whatever doubts may be entertained of the correctness of the rule which those decisions declare. In Chambers v. Ringstaff, 69 Ala. 140, the very question arose upon a mortgage of realty; and, after full discussion by Chief Justice Stone, it was expressly held that when it was admitted, or found by the jury, that the mortgagor owned the lands in dispute when the mortgage was made, in the absence of other proof that she owned or claimed other lands falling within the description, it then became the duty of the court to pronounce the mortgage a valid conveyance. This conclusion was reached without consideration of the fact that the mortgage showed on its face that it was executed in Montgomery county, wherein the lands in dispute lay, and that the parties resided in that county. In Meyer v. Mitchell, 75 Ala. 475, Judge Somerville, arguendo, and in approval of Chambers v. Ringstaff, supra, used the following language, treating of ambiguities: "The general rule everywhere recognized is that mere verbal declarations as to what was intended are not admissible in explanation of the terms of the writing itself. A just exception to this rule, however, is found in parol evidence going to the identification of the subject-matter,-a principle which seems to have been much favored by the past decisions of this court. In Chambers v. Ringstaff, 69 Ala. 140, a description of land in a mortgage void on its face for ambiguity was allowed to be aided by oral evidence showing that the grantor owned and resided on certain lands in this state which were known and described by the same numbers as those employed in the mortgage. The ambiguity there arose from the fact that the description employed in the instrument was, on the face of it, equally applicable to many tracts of land located in various government surveys. The conclusion was reached upon the principle that parol evidence was admissible to show the surrounding or attendant circumstances under which the contract was made, and to identify the subject-matter to which the parties referred." In De Jarnette v. McDaniel, 93 Ala. 215, 9 So. 570, the description of the land in the mortgage was of the same character as that in the present deed. The court said: "The plaintiffs objected to the introduction of the mortgage on the ground of uncertainty and ambiguity in the description. It was then proved that at the time the mortgage was executed, and for several years before that time, Mrs. Dicey De Jarnette lived on the land; that she and her son lived together upon it until his death (1854); and that she owned no other lands. This brought the question directly within the rule declared in Chambers v. Ringstaff, 69 Ala. 140. The circuit court did not err in receiving the mortgage deed in evidence." We have given due consideration to the elaborate argument and array of authorities presented to us by the appellant's counsel, impeaching with much force the rule declared in these decisions. We realize the difficulty and doubt which surround the question. There is contrariety of decision upon it in the states. The briefs collect the authorities. The rule we have adopted commends itself for its conservatism and justice. Howsoever vulnerable it may be to the attack of technical and refined principles of law upon the subject of ambiguous writings, we are not so well satisfied that it is unwise as to be disposed to depart from it.

3. The Bagley deed was not recorded until 1886, and the appellant claims to be a bona fide purchaser of the estate of W. W Brown, in remainder, for value, without notice. His purchase was negotiated and his deed procured by Tipton Bradford, as his agent duly authorized in the premises. Bradford was a practicing lawyer in Birmingham, Ala. Brown lived in, or just adjacent to, that city. Samuel Thompson, living in Birmingham, was related by marriage to Brown. Bradford procured Thompson, as a friendly act, to negotiate with Brown for a deed. What occurred between Thompson and Brown appears in Thompson's testimony, and we give it as he gave it. He says: "I was authorized by Mr. Bradford to see Mr. Brown, and ascertain what he would take for his interest and that of his mother in the said land, *** and said Bradford told me that he wanted to buy Brown's interest in the land. He requested me to ascertain from said Brown what he would take for his interest in the land. I did, as his agent, ask W. W. Brown what he would take for his remainder estate in said land. Brown said that, if he had any interest in the land, he did not know it, and that he could not sell a thing he did not own. I returned to town, and informed Mr. Bradford...