Clements v. Pearce , 63 Ala. 284 ( 1879 )

BRICKELL, C. J.

The objections made to the introduction of the transcript of the record of the judgment and proceedings thereon, from the Circuit Court of Talladega county, were properly overruled. It was certified by the clerk,' in his official capacity, to be a full, true, and complete transcript of the record, the minute-entries, the eosecution docket, and the entries thereon, together ibith all the papers of file, pertaining to the particular Cause. Time and place are constituents of the jurisdiction of courts. Fhe Circuit Court of Talladega, or of any other county, can not be held at any other place than that the law appoints, nor at any other time than is prescribed by law. If it appeared affirmatively that its sittings were elsewhere, or at some time not authorized, its proceedings would be coram non judice, and would be repucliated, whether assailed directly, or introduced as the foundation of a right, or a muniment of title to property. It is a court of general jurisdiction, and all reasonable intendments are made to support its judgments, whether they are directly or collaterally assailed; and the mere silence of the record, as to the time and place of its sitting, Would be supplied by intendment. The record can not, however, be regarded as silent; it affirms, in the caption, that it is the record of a Circuit Court, begun and held at the time appointed for holding the Circuit Court of Talladega county; and in the margin, to which reference must be made, it is entitled: “ The State of Alabama, Talladega county

2. The slight variance between the amount of the judgment, and the amount specified in the execution issuing on it, was immaterial.

3. A plaintiff in ejectment must recover on the strength of his own title. Claiming title under a purchase at sheriff’s sale, made under execution issuing on a judgment of a court of law, he must prove that the defendant in the judgment, to whose title he succeeds, had an interest or estate in the lands, which was subject to levy and sale. The recent possession of the defendant, accompanied by acts of ownership, is prima facie evidence of such an estate or interest. To defeat a recovery, the defendant may show that, notwithstanding such possession, the defendant in execution had no such interest or estate; and it is the right of a defendant in ejectment, or in the corresponding statutory real action, in all cases, to show an outstanding legal title in another; unless he is estopped, because of some act done by him, or because of some relation existing between him and the plaintiff, or between the plaintiff and those with whom he is privy in estate or in possession. — McKinney v. Davis, 5 Ala. 729; Elmore v. Harris, 13 Ala. 360; Cook v. Webb, 18 Ala. 810; King v. Stevens, lb. 475. A defendant in execution, when sued by a purchaser at a sheriff’s sale, is not an exception to the rule. There is no relation existing between them, which estops him from showing that by the sale the purchaser acquired no title; and this is shown, whenever it appears that he was without interest or estate in the lands which was subject to levy and sale, and that his possession was a bare occupancy by the permission of another, in whom the legal estate resided; or that his possession was in conjunction with the possession of the true owner, the law then referring the possession to the title. The first ground of objection made by the appellee to the introduction of the deed from the appellant to Farrell, was not, consequently, well taken.

4. The second ground of objection was also untenable. When the grantor subscribes his name, being able to write, to a conveyance, the attestation of but one witness is necessary to its valid execution. — Code of 1876, §2145. The conveyance was attested by Merritt, who wrote his name beneath the words, “ signed, sealed and delivered in presence of,” opposite the subscription of the grantor, in his presence and that of the grantee, with their knowledge, and without dissent from them, though without a request from them, in words, that he should attest its execution. The deed was then delivered to the grantee; and the delivery and acceptance is an assent to the attestation, equivalent to an express precedent request that he should attest. The informal certificate of acknowledgment made by Merritt subsequently, untrue in its statements, did not affect the validity of the deed as an executed conveyance.

5. Nor should the remaining ground of objection have been sustained. A conveyance of lands, so inaccurate, vague and indefinite in its desqription of the premises, as to render their identity wholly uncertain, it may be conceded is void; and that parol evidence of the intention of the parties can not be received to cure the deficiency. — 1 Green. Ev. § 301. But, before pronouncing it void for uncertainty, the court is bound to receive parol evidence of the circumstances surrounding the grantor, which have relation to the subject-matter, when the conveyance was execúted, and interpret his words in the light of such circumstances; and it is only after a comparison of these circumstances' with the description of the premises in the conveyance, and it is found unintelligible, that the conveyance can be pronounced void for uncertainty. — Pollard v. Maddox, 28 Ala. 321. The duty of the court is to ascertain, if possible, the intention of the grantor, and to give it effect, so far as the law will permit. In grants and conveyances there is often an incongruity between courses and distances as expressed, and monuments, or natural objects, capable of clear, accurate designation and description, such as marked trees, mountains, water-courses; and these control, because the natural presumption is, that the parties are less liable to be mistaken about them, than about courses or distances. — McIver v. Walker, 9 Cranch, 179.

The lands are doubtless inaccurately described, if we look only to the numbers and quantity as collected from the government survey, by which to identify them. This description, however, is accompanied with the further description, that a part of them lies west of JEniptochopko Creek, extending to the agreed line between John Kerley and John W. Bishop, belonging to the grantor; a further part of them lying east of that agreed line, and that the whole tract conveyed was purchased by the grantor of William L. Kerley. The intent to pass the lines lying east of the agreed line, and west of the creek to that line, and the entire tract purchased by the grantor of Kerley, is clearly expressed, Parol evidence of the exact situation and location of the lands, and of their identity, as shown by these descriptions, was admissible, to relieve and cure whatever indefiniteness and discrepancy there may be in the other descriptions. — Saltonstall v. Riley, 28 Ala. 164.

6. The rule is of very general application, that if, from any part of the description, the premises intended to be conveyed clearly appear, the conveyance will not be defeated, because other circumstances of description are added, which are inapplicable, or incapable of a definite application. Such circumstances are rejected, and the maxim, falsa demonstratio non nocet, is applied. — 3 Washb. Real Prop. 844-47. The conveyance to Farrell ought to have been received in evidence ; and parol evidence, showing that the lands sought to be recovered, were the lands the grantor had purchased of Kerley, situate in reference to the agreed line between Bishop and Kerley, gave application to the description in the conveyance, identified them as the lands passing by it, and ought also to have been received.

7. The survey of the lands made by Barron, the county surveyor, notice of it not having been given to the appellee, was not, of itself, legal evidence. But it would be admissible, in connection with the evidence of the surveyor. — Nolin v. Parmer, 21 Ala. 66; Bridges v. McClendon, 56 Ala. 327.

For the error in excluding this deed to Farrell, the judgment must be reversed, and the cause remanded.