Donehoo v. Johnson , 113 Ala. 126 ( 1896 )

COLEMAN, J.

The ajDpellee sued appellant in the statutory action of ejectment to recover a certain eighty acre parcel of land. Both parties claimed title through John Held, deceased; the plaintiff as his only heir, and the defendant as a purchaser at chancery sale. After the plaintiff had introduced evidence to show that her ancestor had acquired title and possession of the land as a part of a tract of six hundred acres, and had died, and that she was his only heir, the defendant offered to introduce in evidence the pleadings and decree in a chancery court suit instituted by a creditor of John Reid, the purpose of which was to set aside and annul a deed of conveyance of lands made by John Reid for the benefit of his daughter, the plaintiff, and to condemn the lands to be sold for the satisfaction of his debt. The administrator and plaintiff were parties respondent to that proceeding. The decree of the court ascertained that the conveyance was fraudulent and void, and the lands were condemned to be sold. An objection was sustained to this evidence, and this is the main ground of error assigned. The ground of objection was, that the description of the land contained in the bill and the decree of the court, and in the advertisement of the land, although proper as to all the remainder of the tract of land, omitted and did not include the eighty acres now in controversy. The appellant contends that there is a latent ambiguity in the description, of the land and that parol evidence is admissible to show this fact and the description intended. The eighty acres in controversy consist of the west half of the southeast quarter of section twenty-one. In the chancery court proceedings, the boundary line relative to this section is described as running from the northeast corner of the southeast quarter of section twenty-one, due west to the northwest corner of the southeast quarter of section twenty-one to a stake, from thence south a half mile and thence west, which description leaves out entirely the land sued for. It was proposed to show by parol that there was in fact no stake at this point, but that there was a stake at the northwest corner of the east half of the southeast quarter of section twenty-one, and by stopping at this place and from thence running south a half mile and thence west, such a description included the eighty acres.

The facts as contended for do not present a case of latent ambiguity in any respect. There can be no question of a latent ambiguity arising from the description of the land in the bill and decree and the facts proposed to be proven. To allow such evidence would be to vary and contradict the writings by parol, and not to explain. The chancery proceedings seem to have followed the description contained in the fraudulent deed of conveyance, -and which did not include the lands in controversy. The title and rights of the purchaser were fully considered and settled in the case of Bromberg v. Yukers, 108 Ala. 577, and Austin v. Willis, 90 Ala. 421. The court committed no error in excluding this testimony.

We are of Opinion that the court erred in ruling that the planting of an apple orchard did not constitute “permanent improvements” within the meaning of the statute, (sections 2702, 2703 of the Code of 1886). The evidence disclosed that the value of the land itself was enhanced by the orchard; and that such improvements are permanent, we do not think can admit of controversy. — 10 Am. & Eng. Encyc. of Law, 243 and notes.

For the error in not allowing the defendant this credit the judgment must be reversed.

' Eeversed and remanded.