Sims v. Thompson , 30 Ala. 158 ( 1857 )

STONE, J.

The land sued for is described in the same terms in the complaint and in the judgment entry. The description is, “The west half of the south-east quarter, and twenty-five acres off the west end of the south-west quarter of the north-east quarter; all in section 15, township 10, range 8.” It is objected that these terms are too general and indefinite.

This question has been frequently before this court; and it has uniformly been held, that if the description inform the defendant what he is to defend, and the sheriff of what he is to deliver possession, it is sufficient. — See the authorities cited by counsel.

It is true that the motes and bounds of the 25 acres are not given. They may, however, be easily ascertained, by any surveyor. They are to be taken off the vrest end— excluding, of course, the east end. Running a line north and south, at a proper distance from the western boundary, will give the required quantity.

This position is not destroyed or weakened by the fact that a surveyor’s services may bo required to settle the boundaries. Such is not unfrequently the case. "When land corners and boundaries are notoriously and permanently marked, litigation in regard to them is not likely to spring up.

'What we understand by reasonable certainty in this connection, is, that necessary data shall be furnished, from which the true boundaries may be certainly learned. Id cerium est, quod cerium reddi potest. — Drane v. King, 25 Ala. 556.

In giving judgment against the defendants for costs, we think the circuit court erred. No plea was interposed, and judgment was rendered by default final. In such case, the defendant is not liable for costs, unless proof be made that he was in “possession of the premises, or some part thereof, at the commencement of the suit.” — Code, § 2218. Neither can we intend that this proof was mdde in the court below. The judgment was by default final, without the intervention of a jury. To justify the judgment, the record should affirmatively show that the proof was made.

In Ivey v. McQueen, the circuit court had improperly rendered judgment against plaintiff in error for costs., This court reversed the case, and rendered the proper judgment here, at the costs of plaintiff in error. That case is identical in principle with the present, and must control it. 17 Ala. 408.

The judgment of the circuit court, so far as it adjudges costs against appellants, is reversed, and here corrected, at the costs of appellants.