McMillan v. Aikin , 189 Ala. 330 ( 1914 )

McCLELLAN, J.

Statutory ejectment by appellee against appellants. In brief for appellants there is inserted a map which counsel for appellee say is a very good sketch of the locus in quo involved and influential in this controversy. And it may be added that the record itself confirms the correctness of the map just mentioned. The report of the appeal will contain a reproduction of that map. The shaded part of the map, having as its west line the range line, is the particular land in dispute. It will he observed from the map that the land in question lies south of Bayou Jasamine, formerly Bayou Forbeau. At pages 52 and 53 of the transcript this recital appears:

“Some of defendants’ witnesses stated that the beds of the water courses Bayou Jasamine and Jug Lake have never changed from where they now are, and this was the only testimony on this point.”

The report of the appeal will also contain these documents as they appear in this transcript: (a) The patent executed by the President of the United States; (b) the petition of Louis Baudin, of date April 27, 1798, addressed to the Governor General, along with its associated document signed by Manuel de Lanzos; (c) those documents, dated June 28, 1798, and August 1, 1805, signed, respectively, by Manuel ele Lemos and Franco', Máxime de St. Maxent et al.; (d) the instrument purporting to convey lands from Louis Baudin to Joshua Kennedy, of date August 27, 1806; (e) and the “Register’s and Receiver’s Report A, No. 1, Cl. No. 2.”

The plaintiff asserts, and relies, at least in the main, upon, the possession by her in orderly succession of a perfect title, in character, from Louis Baudin; the insistence being that Baudin conveyed, assigned, or transferred to Joshua Kennedy the rights of Baudin to land inclusive of that now in dispute, and that, in regular turn under acts of Congress confirming claims or rights in land held or claimed under Spanish authority dominant in that territory when cession of that territory was made to the United States, title vested in her. The trial court accepted the plaintiff’s view; and so gave these instructions to the jury: “The plaintiff is entitled to a judgment for the property sued for, unless defendants reasonably satisfy you that under color of title they acquired title to this land by adverse possession.”

And again: “The court charges the jury that plaintiff in this case has shown a perect legal paper title to the land sued for and is entitled to recover unless the jury are reasonably satisfied from the evidence that the defendants acquired title by having and maintaining open, notorious, exclusive adverse possession of the property for a continuous period of ten years.”

It is established in this court that, when the plaintiff relies upon a conveyance from another, there must be evidence that, at the time of the conveyance, the grantor had the legal title to the lands in question.—Baucum v. George, 65 Ala.259, 267.

A careful consideration by the sitting members of the court, in the consultation of the court, of the papers herein above directed to be set forth in the report of the appeal — and so in the light of the argument in briefs for appellee in this connection — leads tothe conclusion that the - instrument lettered (for description and reference) “d,”’ purporting to transmit the rights of Baudin to Kennedy and the petition lettered (as above) “b,” and the patent from the United States, lettered “a,” based upon the petition and' its associated or related documents, do' not include and describe the land involved in this suit. Our opinion is that the land described in the Baudin-Kennedy instrument has no reference to the land lying south of Bayou Jasamine, formerly Bayou Forbeau. As we understand it, such is the clear expression of the instrument; for it unmistakeably and particularly describes the land involved as bounded on the south (lying north of) Bayou Jasamine.

Reference to the map before mentioned, in connection with statements to be quoted from pages 7 and 8 of the transcript, leave no room for doubt that Bottle Bayou empties into- Tensaw river north of the point at which Bayou Jasamine branches off to the east. Aiken Island, according to the record, “is bounded by the following water courses: * * * On the south by Bayou Forbeau which is also called Bayou Jasamine; bn the west by Bottle creek and Tensaw river and on the north and east by Tensaw river.” This statement necessarily projects Bottle creek north of the point where Bayou Jasamine leaves or joins Bottle creek; and, in consequence, permits that creek to be a western boundary of the Island. Again it is said in the record: “That Bottle Creek is a stream about a mile west of the land involved in this action in Tp. 1 N. R. 1 E., which flows into Tensaw river, and that it and Tensaw river bound the Aiken Island on the west and Bayou Jasamine bounds that island on the south.”

And again it is recited: “The map and evidence showed that Bayou Jasamine is a small stream flowing out from the east side of Bottle creek in an eastei*ly direction. * * *”

When the stated physical relation of these water courses is understood as the map and the record describes it, the particular land described as follows in the petition, before referred to, and in the Baudin-Kennedy instrument necessarily locate it north of Jasamine Bayou, and attingent to- the east side of Bottle Bayou, viz. (as in the petition) : “* * * A tract of land front on the north side by Bayou Jasamine and extending towards north below twenty arpens, bounded on the east side by Bottle Bayou, on the south by said Bayou Jasamine and on the east by Tensaw river. * *

And, as in the Baudin-Kennedy instrument; “* * * A certain tract of land containing twenty arpens front with the ordinary depth bounded fronting Bayou Jasamine and bounded on the west by Bottle Bayou and Tensaw river, it being the same which I have acquired by virtue of a concession made to- me by his excellency Manuel Cayoso de Lemos, Governor General of this province, by his deed bearing date twenty-eight of June one thousand seven hundred and (eight) I say ninety-eight- and it is the same tract of land described as aforesaid. * * *”

According to the description and terms of the Baudin-Kennedy instrument, Baudin only undertook to transput to Kennedy the same tract the Governor General had granted to him; and, when reference is had to- that petition and proceeding, the grant was only of land lying north of Bayou Forbeau or Jasamine and bounded on the west by Bottle Bayou and Tensaw river.

These writings are not ambiguous in respect of the particular subject-matter thereof. That is specifically defined so far as excluding land, south of Bayou Jasamine is concerned. No- custom or usage of the character given consideration in Slidell v. Grandjean, 111 U. S. 412, 4 Sup. Ct. 475, 28 L. Ed. 321, could avail to alter the express description of land set down in the instruments referred to. Under the circumstances made by these writings, particularly describing a readily ascertainable area of land, no reason appears or has been made to appear why the ordinary rules of law touching ordinary conveyances of real estate in this state should not have effect and be ápplied. Where a conveyance definitely describes a tract! or plot of land, It cannot, in a court of law, be the basis of a right to recover another and different tract of land not described therein; nor can evidence of the grantor’s intention to convey such other and different tract be received; for the correction of the description in the instrument must be sought in a court of equity.—Foster v. Carlisle, 159 Ala. 621, 48 South. 655, and authorities therein cited.

The trial below proceeded upon a different basis, in respect of the documents mentioned and the legal result attending their presence as evidence in the cause; and the court by the quoted instructions to the jury gave them an evidential, legal effect opposed to the conclusion prevailing here. The judgment must therefore be reversed and the cause remanded. The law touching adverse possession in its varied relations has been so often stated here it is not now thought necessary to' reiterate.

Reversed and remanded.

Anderson, C. J., and Mayfield and de Graffenried, JJ., concur.