Doe ex dem. Dorgan v. Weeks , 86 Ala. 329 ( 1888 )

CLOPTON, J.

The defendants, in order to establish their title to the land sued for, offered in evidence a deed made by Henry Baudin, January 1, 1809, to Nicholas Weeks, their ancestor. The plaintiff objected to the introduction in evidence of the deed, the specified grounds of objection being, that it was void for uncertainty in the description of the subject of conveyance, and that it did not appear from the description itself that it included or covered any part of the land sued for. The court overruled the objection, observing that the defendant might show by parol evidence that the land was included in the description. After reciting that it was made at Pish Eiver, in the province of West Florida, and in consideration- of one thousand dollars, the deed describes the land as “a certain tract of land being and lying at aforesaid place- of Fish Eiver, province aforesaid, commonly known as ‘Ward’s old place,’ beginning at a creek which empties-itself into the said Fish Eiver, and known by the name of Alligator Creek; thence south to a rock fronting on the Bay of Mobile, calculating in said tract a superficies of one thousand acres, or thereabouts.” What indefiniteness and uncertainty of description of the property intended to be conveyed is sufficient to render a conveyance void, has been so repeatedly considered by this court, that after the numerous decisions respecting it, the test should now be regarded as settled. A deed will not be declared void on its face, unless it is apparent, from the generality and imperfection of the description, that the land can not be identified by extrinsic evidence. An imperfect description may be rendered certain by parol evidence of explanatory and identifying facts. — Gaston v. Weir, 84 Ala. 193; Meyer v. Mitchell, 75 Ala. 475; Angel v, Simpson, 85 Ala. 53; O’Neal v. Seixas, 85 Ala. 80; Black v. Pratt Co. & C. Co., 85 Ala. 504. The deed will be sustained, if it is practicable to ascertain and identify tbe subject of conveyance by the aid of parol evidence. Tbe deed in question not only designates tbe land as tbe tract commonly known as “Ward’sold place,” but, also, as bounded on .the east by a line commencing at Alligator Creek, a natural boundary, and running thence south to a rock fronting Mobile Bay. Tbis description necessarily constitutes tbe creek tbe northern extremity, Mobile Bay tbe western boundary, and tbe line running southward tbe eastern boundary. From tbis description, a competent surveyor, without much difficulty, could locate tbe land. Deeds containing descriptions more general and indefinite have been sustained. — Driggers v. Cassady, 71 Ala. 529; Trainum v. Wilkinson, 81 Ala. 408; Smith v. Dean, 15 Neb. 432; Dev. on Deeds, § 1012. Tbe settled rule is, that a deed will not be pronounced void for uncertainty of description, if by the aid of parol evidence of extrinsic facts the land intended to be conveyed can be located. — Black v. Pratt Coal & Coke Co., 85 Ala. 504.

It is admitted that there is a tract of land known as tbe “Baudin tract,” and a tract known as tbe “Ward tract,” the latter bounded on tbe west by Mobile Bay and Weeks’ Bay, and adjoining tbe “Baudin tract.” Both tracts were formerly owned by Henry Baudin, tbe grantor of Weeks. Tbe real point of contention is, whether tbe land sued for constitutes a part of tbe Baudin, or of tbe Ward tract. As relevant to this contention, both parties introduced parol evidence. After all tbe evidence was introduced, tbe plaintiff moved to exclude from tbe jury tbe deed to Nicholas Weeks, on tbe ground of uncertainty of description, and on tbe further ground that the ' parol evidence failed to show that tbe land sued for was included in tbe deed. Tbe extrinsic evidence on tbe part of defendants tended to show that tbe “Ward old place” was well known, and that old marks, made by surveyors, indicated tbe boundaries. There was further evidence tending to show that tbe place of beginning, as stated in tbe deed, is at tbe bead of Alligator Creek, or bayou; that tbe Baudin tract only included tbe small portion of tbe land sued for north of tbe bayou; and that tbe defendants and their ancestors had claimed and been in adverse possession of tbe land as a part of tbe Ward tract, for tbe past forty or fifty years. There was conflicting evidence on the part of the plaintiff. Had the court granted the motion, and excluded the evidence from the jury, the ruling would have been the equivalent of passing upon the effect of the evidence, withdrawing it from the consideration of the jury, and of an affirmative charge in favor of the plaintiff. It is manifest that the evidence on the part of the defendants, whether slight or otherwise is immaterial, tended to show that the land sued for was included in the Ward tract. The conflict in the parol evidence made a question peculiarly for the jury, to whom the court properly submitted its determination.

Affirmed.