Welden v. Brown

• Decision Date: 22 January 1914
• Citation: 64 So. 430,185 Ala. 171
• Parties: WELDEN et al. v. BROWN.
• Court: Alabama Supreme Court

64 So. 430

185 Ala. 171

WELDEN et al. v. BROWN.

Supreme Court of Alabama

January 22, 1914

Appeal from Chancery Court, Tallapoosa County; W.W. Whiteside Chancellor.

Action by A.K. Welden and others against J.H.B. Brown for partition. Judgment for defendant, and complainants appeal. Affirmed.

Isbell & Scott, of Ft. Payne, for appellants.

Bridges & Oliver, of Dadeville, for appellee.

DE GRAFFENRIED, J.

This bill was filed for the sale of certain lands described in the bill. The description of the lands sought to be sold is legally insufficient, and is void for uncertainty. The land sought to be sold is described as "225 acres lying on E 1/2 of Sec. 29, Tp. 21, R. 22, starting at the half-mile stake on the north sec. line, running due south to a made corner on the dividing line of said sec., and then runnig east with the cross-fence at the south to a made corner at the end of said fence, and then running south to the original line."

It is of course, necessary that, in proceedings of this character the lands shall be so described in the bill, and in the decree ordering a sale pursuant to the prayer of the bill that the purchaser shall obtain the title to the lands intended to be sold. Griffin v. Hall, 111 Ala. 601, 20 So. 485; Hunnicutt v. Head, 60 So. 831.

The above description is not only uncertain in itself, but there is, in our opinion, nothing in the bill which affords legally sufficient data by reference to which the uncertain description may be made certain. It is true that the bill alleges that the lands were set aside as dower to Sarah Ann Welden; but the bill then goes further and describes the dower lands in the same identical, uncertain way as the lands are described in the bill, and which description we have above quoted.

The above defect in the bill was aptly pointed out by demurrer, and we are of the opinion that the chancellor properly sustained the demurrer to the bill on the stated ground.

It may be that 225 acres of land were set aside to Sarah Ann Welden as dower, under the above uncertain and void description. If so, a correct description of the lands which were actually set apart to her may probably be obtained by a survey, or by some other method. The bill can then be amended by properly describing therein the lands sought to be sold, and the identity of the lands thus properly described in the bill as amended can be established by evidence. Caston et al. v....