McManus v. Wilson , 138 Miss. 1 ( 1924 )

^* Headnotes 1. Evidence, 22 C.J., section 1688; 2. Deeds, 18 C.J., section 62; 3. Evidence, 22 C.J., section 1688; 4. Deeds, 18 C.J., section 254. Appellant, Mrs. McManus, filed her bill in the chancery court of Warren county against appellee, Mrs. Wilson, to remove clouds from and to establish title to a small strip of land in lots thirty-seven and forty in square ten of the Harrisburg survey of the city of Vicksburg. Appellant prays that, if necessary to establish her right to the strip of land involved, the deed under which she claims title thereto be reformed so as to include such strip of land. The cause was heard on bill, answer, and proofs, and a final decree was rendered dismissing the appellant's bill, from which decree she appeals to this court.

Appellant and appellee own adjoining lots in the city of Vicksburg facing on Speed street. They acquired title to their respective lots by conveyances from Mrs. L.O. Hardenstein, appellant's being prior in date. Mrs. Hardenstein owned a part of lots thirty-seven and forty in square ten of the Harrisburg survey, being one hundred seventy-three and one-half feet east and west on Speed street by sixty-eight feet nine inches north and south, and bordered on the east by Lake street. This property was cut up into several lots, on each of which was a cottage. On the east end of the property are two cottages on adjoining lots. The one furthest east is appellant's lot and cottage, and is bounded on the east by Lake street. Appellant's cottage is numbered 920. The adjoining lot on the west is owned by the appellee. It has a cottage on it numbered 918.

In the conveyance from Mrs. Hardenstein to appellant a particular description is given by metes and bounds describing a lot twenty-seven feet east and west on Speed street by sixty-eight feet nine inches north and south on Lake street. The particular description is followed with this language: "The property hereby conveyed being the house and lot on Speed street numbered 920." The conveyance to appellee also contains a particular description of the property conveyed by metes and bounds, describing a lot fronting east and west on Speed street thirty-six and one-half feet "to the lot owned by Emma Augustus McManus" (appellant), by sixty-eight feet nine inches north and south. There followed also in this deed a general description in this language: "The property hereby conveyed being the house and lot on Speed street No. 918." The residences now on those lots were there at the time of the conveyances to appellant and appellee. This litigation arose by reason of the fact that the particular description in each of these deeds overlaps the other. This was brought about by the fact that the descriptions both began at an erroneous starting point. It was shown without controversy that, if appellee got what was particularly described in her deed, her lot would overlap appellant's lot, taking in the eaves of her house and part of the wall. On the other hand, it was shown that, if the particular description of appellant's lot, including a frontage of twenty-seven feet on Speed street, were to stand, appellee's lot would be cut down considerably in width east and west. Therefore both parties undertook to show by parol evidence what was intended to be conveyed by their respective deeds, and to that end resort was very largely had to the general description in each conveyance; that in appellant's being in substance the house and lot on Speed street numbered 920, and that in appellee's being the house and lot on Speed street numbered 918.

Appellee built a garage on her lot in the rear of her residence. This garage encroaches on appellant's eaves or gutter line five and three-fourths inches. In the trial of the cause in the court below this five and three-fourths inch strip was finally recognized as the real subject of the controversy. The evidence shows that appellant's house and lot was No. 920 and that of appellee No. 918. The evidence shows without conflict that when appellant received her conveyance the house and its eaves or gutter line on the west next to appellee's lot stood where it did when the cause was tried in the court below. It is manifest that in order to determine what was intended to be conveyed to appellant under the general language, "being the house and lot on Speed street numbered 920," resort must be had to parol testimony. It should be kept in mind that the particular description in this deed is not controlling because it is an impossible description Taking its beginning point as true, there could not be a frontage of appellant's lot on Speed street of twenty-seven feet. Instead it is something like twenty-two feet.

Whenever the description given in a deed is imperfect, yet is sufficient to point an inquiry which, if pursued, will locate with certainty the true boundary of the land intended to be conveyed, the deed is not void. Such defect may be cured by parol evidence identifying the land intended to be conveyed. Jenkins v. Bodley, Smedes M., Ch. 338; Bingaman v. Hyatt, Smedes M., Ch. 437; Tucker v. Field, 51 Miss. 191; Stewart v.Cage, 59 Miss. 558; Kyle v. Rhodes, 71 Miss. 487, 15 So. 40.

Where a city lot is described by metes and bounds so as not to include all the ground covered by the house thereon, and following such description the property is designated as a lot and house thereon having a certain number, and the particular description does not include all the ground covered by the house, the general description where it conforms to the manifest intent will prevail over the particular description. Such general description aided by parol evidence is sufficient to pass title, not only to the land covered by the house, but to such additional land as is necessary for the reasonable use and enjoyment of the house. Gilbert v. McCreary, 87 W. Va. 56, 104 S.E. 273, 12 A.L.R. 1172. The parol evidence in the present case showed that it was the purpose of Mrs. Hardenstein, the grantor, to sell and convey, and of the appellant, the grantee, to purchase, the lot fronting on Speed street with the cottage thereon numbered 920. The parol evidence showed with certainty exactly what was intended by the general description in appellant's deed, "the house and lot on Speed street numbered 920," and it showed that it was the purpose of the grantor and of appellant, the grantee, that thereby the house so numbered and the lot on which it stood, with sufficient space outlying on the west for the comfortable enjoyment of the place, should be conveyed. Certainly the ground under the eaves or gutter line is necessary for the proper enjoyment of a residence.

We hold, therefore, that appellant not only owns the land on which the house stands, but owns sufficient space on the west, next to the lot of appellee, to cover such eaves or gutter space. Appellant is entitled to such eaves or gutter space for the entire length of her lot north and south on the west.

Reversed, and judgment here.

ON SUGGESTION OF ERROR. In their suggestion of error appellees attack alone the statement in the opinion that the evidence showed without conflict that when the case was tried in the court below appellant's west gutter line remained exactly where it was when she received her conveyance. Appellees point out that there is conflict in the evidence on that proposition, and we find that to be true from a reading of the evidence in the case. We were led into making that statement in the opinion by the fact that in appellant's first brief and argument filed in the cause, it was asserted that appellant's gutter line on the west had never been changed since her conveyance. In view of the fact that this was a vital question of fact in the case we thought, if appellant's assertion was untrue, appellees would so state in their brief and argument in reply and point out wherein it was untrue. This appellees did not do. Therefore we thought it unnecessary to go to the record to settle the question.

We find on reading the record that the evidence is in fact conflicting as to whether appellant's gutter line on the west had been moved further west after her purchase. We find, however, that the evidence is so vague and indefinite as to whether the line was so moved or not, and, if so, how far, that the trial court could not, in our opinion, have based a decree upon it. The suggestion of error, therefore, as to that part of the opinion, is sustained, and the cause is reversed and remanded.

Suggestion of error sustained in part, and cause reversed andremanded.