Thrasher v. Royster

McCLELLAN, j.

statutory ejectment by appellee against appellant. The trial was by the court, without the intervention of the jury. The findings of the court established the basis of the recovery awarded the plaintiff. The property in controversy was described in the complaint as lots 1 and 2, block B, in the Tidwell addition to the. town of Mountainboro, a municipality in Etowah county.

The chief matters of appellant’s complaint arises from the reception in evidence, and the interpretation, under parol evidence admitted, of the conveyance executed June 26, 1901, by E. and JD. A. Tidwell and S. A. Bradford to J. J. Patterson. The original of this Instrument is certified to this court in accordance with the rule governing that practice. Among other canceling markings, made in ink, appearing on the face of the instrument, the exception of “lots No. 1 and No. 2 in block B in the town of Mountainboro,” with exceptions of other lots similarly referred to, was crossed out in ink. The evidence taken on the trial shows beyond any real basis for doubt that the cancellations particularly mentioned were made after the execution and delivery of the instrument. So the trial court held. The effect upon the issues of this conclusion of fact was to exclude from the conveyance in defendant’s line of title the lots in question; provided, the exception undertaken to be made was valid and effective. Over defendant’s objections parol evidence was admitted to show that the reference in the exception mentioned was to a plat or map' of the Tidwell addition to Mountainboro, and that the lots in suit were those described in the exception.

It is urged that a map or plat of an area of land—. .made or caused to be made by the owner for purposes of sale or other disposal—cannot he constituted a part of a conveyance of a subdivision or subdivisions thereof, unless the map or plat is acknowledged, certified, and filed as prescribed by the system provided in Code 1896, § 3899 et seq.; Code 1907, § 6028 et seq. This contention is without merit.—Thomas v. Cowin, 147 Ala. 478, 39 South. 898; East Birmingham Co. v. Birmingham Machine Co., 160 Ala. 461, 473, 49 South. 448; 13 Cyc. p. 634; Reed v. Lammel, 28 Minn. 306, 9 N. W. 858; Sanborn v. Mueller, 38 Minn. 27, 35 N. W. 666; Ferguson v. Winsor, 10 Ont. 13; 2 Divlin on Deeds, § 1020. But in order to make a map or plat a part of such a conveyance there must be a definite, certain reference in the instrument to a certain existent map or plat showing the lot or plat intended to be conveyed.-—Doe ex dem. Miller v. Cullum, 4 Ala. 576; Birmingham Sec. Co. v. South University, 173 Ala. 116, 121, 55 South. 240; 13 Cyc. pp. 633, 634; 2 Devlin, § 1020 et seq.; Proprietors of Kennebec Purchase v. Tiffany, 1 Greenl. (Me.) 219, 10 Am. Dec. 60; Chesley v. Holmes, 40 Me. 536, 546. Unless there is of file or on record when the conveyance is executed a map or plat to which the numbering of lots made in a conveyance can be certainly referred, the mere numbering of lots in the instrument will not suffice to render a then existent private map or plat a part of the conveyance.—Chesley v. Holmes, supra; Tiffany’s Case, supra.

If the instrument refers with certainty to a particular map or plat, then parol evidence may be received to identify the map or plat so referred to, notwithstanding it may not be attached to the conveyance or may not be filed or received, or may not have been adopted as an official map or plat.—2 Devlin, § 1022, and other authorities supra. The ruling made in Stein v. Ashby, 24 Ala. 521, 530, 531, concluded against the admission of a map as original evidence, unaffected by tbe factor introduced where there has been an adoption of the map as a part of the instrument by reference made thereto in the face of the conveyance. Where one map or plat is referred to, and thus becomes a part of the conveyance, parol evidence cannot be received to show that another map or plat, not referred to in the instrument, was the map or plat intended.—-13 Cyc. p. 634; Chesley v. Holmes, supra.

The complaint seeks, as stated, a recovery of numbered lots in the Tidwell addition to- Mountainboro. If we assume, for the occasion, the validity of the exception in the conveyance to Patterson, it must be interpreted as referring to the numbered lots in the plan of said town, not in an addition thereto'.—Menkins v. Blumenthal, 19 Mo. 496. To admit parol evidence to the effect that the lots intended to be excepted, or that were excepted, from that conveyance to Patterson were lots of the designated number in the map or plan of the addition to the town of Mountainboro would be to' allow testimony in contradiction of the language of the deed. —Wellington v. Murdough, 41 Me. 281; Chesley v. Holmes, supra.

The court, therefore, erred in admitting parol evidence to the effect that the numbered lots specified in the exception quoted were referable to the Tidwell addition to the town of Mountainboro.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

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