Wilkinson v. Webb

• Decision Date: 21 February 1898
• Citation: 75 Miss. 403,23 So. 180
• Court: Mississippi Supreme Court
• Parties: W. N. WILKINSON v. M. P. WEBB

23 So. 180

75 Miss. 403

W. N. WILKINSON v. M. P. WEBB

Supreme Court of Mississippi

February 21, 1898

December 1897

FROM the circuit court of Tallahatchie county HON. F. A MONTGOMERY, Judge.

The opinion states the case.

Affirmed.

Eskridge & Dinkins, for the appellant.

If the description employed in the several deeds under review expresses only a latent ambiguity, it must be treated as sufficient under the agreement of counsel, as it could be readily shown by parol evidence to what land it was intended to have application. But the description, "Lot 36, in the town of Webb, " is patently ambiguous. Haughton v. Sartor, 71 Miss. 357; 2 Am. & Eng. Enc. L. [2d ed.] 288, 289.

The case of Peacher v. Strauss, 47 Miss. 353, relied on by appellee, is, we think, overruled by Haughton v. Sartor, supra, which expressly overrules Foute v. Fairman, 48 Miss. 536, in which Peacher v. Strauss, is referred to as authority.

The cases of Hanna v. Renfro, 32 Miss. 125, and Lewis v. Seibles, 65 Miss. 251, are without application, as they involve tax collectors' deeds, which rest upon a different footing.

On the other hand, the description, "Lot 36, in the town of Webb, Tallahatchie county, Miss." is free from doubt.

James Stone, for the appellee.

The description, "Lot 36, in the town of Webb, " does not contain a patent ambiguity. Hanna v. Renfro, 32 Miss. 125; Peacher v. Strauss, 47 Ib., 353; Foute v. Fairman, 48 Ib., 550; Bowers v. Andrews, 52 Ib., 600; Lewis v. Seibles, 65 Ib., 251. In Haughton v. Sartor, 71 Miss. 357, the deed omitted the range in which the land was situated, and the court held the description to be void, relying on Bowers v. Andrews, and criticising the opinion in that case because Foute v. Fairman was not expressly overruled, and did then expressly overrule it without referring to Peacher v. Strauss or Lewis v. Seibles.

It thus appears the doctrine announced in Hanna v. Renfro is correct, and has been expressly approved in Lewis v. Seibles, and it must follow that the case of Peacher v. Strauss stands upon a different footing from that of Foute v. Fairman. The court is compelled to take notice that there is more than one section of the same number in every county, and, therefore, upon the face of the instrument, it must appear that the description is bad. While in Peacher v. Strauss the court could not tell from the face of the instrument whether there was more than one lot "5" in the town of Jackson, or more than one town of Jackson. If not, then the description was clearly good, and as this fact must appear by extrinsic evidence, the same character of evidence became admissible to show what lot 5 and what town of Jackson were meant by the grantor.

Since the evidence in this case shows that there is more than one lot 36, and more than one town of Webb, other extrinsic evidence may be adduced to show what land was meant by the parties. Bowers v. Andrews, supra; Brown v. Guice, 46 Miss. 299; Peacher v. Strauss, supra.

OPINION

TERRAL, J.

The plaintiff sued the defendant, in ejectment, for lot No. 36, in the town of Webb, Tallahatchie county, state of Mississippi. The case was submitted to the court without a jury, and it found a verdict for the defendant, and entered judgment accordingly.

To maintain his cause, the plaintiff, among other evidences of title, introduced a deed of trust executed by F. S. Crow to W. T. Marshall, trustee, describing the lot sued for as "Lot 36, in the town of Webb, Tallahatchie county, Miss." and it was objected to for uncertainty, because it did not describe the lot as being in the state of Mississippi.

The defendant, on her side, among other evidences of title, introduced a deed of trust made by D. R. Crow to J. R. McCullough, trustee, for "Lot 36, in the town of Webb, " omitting both state and county. The trust deed, however, is dated at "Webb, Miss." and it describes the beneficiary, J. L. Webb, as doing business at Webb, Tallahatchie county, Miss. She also introduced a deed from R. B. Rice to herself, for "Lot 36, in the village of Webb, Tallahatchie county, Miss." thus omitting the state of Mississippi, unless it is included in the abbreviation, "Miss."

It was agreed that if parol evidence was admissible to supply the uncertainty in the aforesaid description of lot 36, that each party could prove that the intention was to convey lot 36, in the town of Webb, Tallahatchie county, state of Mississippi.

It was also agreed that the United States postoffice official guide shows more than one town of the name of Webb in the United States.

In Lewis v. Siebles , 65 Miss. 251, 3 So. 652, the...