East v. Karter , 215 Ala. 375 ( 1926 )

The lots sought to be conveyed to cross-complainant (the dimensions of which form a part of their description in the deed) are more particularly described in paragraphs 2 and 3 of the cross-bill, in connection with the further averment that there were no other lots in Cullman county bearing the numbers set out in the description in the deed; that the grantor owned and was in possession of these lots therein specifically described, which lots were designated upon the recorded map of said city or town; and that she owned no other lot of land in Cullman county other than said lots which constituted the only real estate owned by said grantor at the time of the execution of this deed, with the single exception of lot 522 in the city of Cullman, upon which was located grantor's home, and which is not here involved.

The rule is well settled that the law leans against the destruction of a deed for uncertainty of description. Nolen v. Henry, 190 Ala. 540, 67 So. 500, Ann. Cas. 1917B, 792. And in Cottingham v. Hill, 119 Ala. 353, 24 So. 552, 72 Am. St. Rep. 923, it was said:

"This court has gone as far as any other, in admitting parol evidence to sustain the validity of deeds, assailed upon the ground of indefiniteness in the description of the land, but the rule which we have adopted promotes justice, and does not open the door to fraud and perjury."

See, also, Minge v. Green, 176 Ala. 343, 58 So. 381, and authorities therein cited. The case of Mutual Bldg. Loan Ass'n v. Wyeth, 105 Ala. 639, 17 So. 45, is distinguishable upon the facts.

I am persuaded the averments above referred to in connection with all other allegations bring the case within the well-recognized rule of Chambers v. Ringstaff, 69 Ala. 140. "A description which furnishes the means of making it certain by proof is sufficient." Lodge v. Wilkerson, 165 Ala. 302,51 So. 609.

To the foregoing may be added the following authorities in support of this view and the sufficiency of the cross-bill: Ellis v. Burden, 1 Ala. 458; Reynolds v. Shaw, 207 Ala. 274,92 So. 444; O'Neal v. Seixas, 85 Ala. 80, 4 So. 745; Caston v. McCord, 130 Ala. 320, 30 So. 431; Homan v. Stewart, 103 Ala. 644,16 So. 35. Mead v. Parker, 115 Mass. 413, 15 Am. Rep. 110.

I therefore respectfully dissent.

THOMAS, J., concurs.