Carroll v. Fausett

The minute entry shows that defendants demurred "to count 3 in the complaint as last amended," and that the demurrer was overruled. This demurrer is not set out in the record, and, the grounds relied on not being apparent, this court will not review the ruling of the trial court. Shelby Iron Co. v. Bierly, 202 Ala. 422, 80 So. 806.

But appellant contends that the complaint does not describe the land with sufficient certainty to support a verdict and judgment for its recovery. A careful analysis of the complaint convinces us that this contention is well founded. The elements of description are hopelessly self-contradictory as to the depth of the strip. Moreover, it appears that the strip sued for is a part of the lot purchased by plaintiff from Chewning, and yet the western boundary of the strip is said to be the east side of the lot occupied by plaintiff, and no monuments are referred to, nor any mode of demarcation. We do not see how an officer could locate the land with any sort of certainty from the description given, and that is the test of its sufficiency. Goodwin v. Forman, 114 Ala. 489, 492, 21 So. 946; Bradford v. Sneed, 174 Ala. 113, 56 So. 532; Lessley v. Prater, 200 Ala. 43, 75 So. 355.

No evidence was offered to show that any of the grantors in plaintiff's title deeds ever owned or were ever in possession of the land therein conveyed. It was therefore error to instruct the jury that, if the disputed strip was included in the description of the land conveyed to plaintiff by Chewning, plaintiff was entitled to recover in the absence of adverse possession for 10 years by defendants.

We deem it unnecessary to discuss other questions presented by the assignments of error.

For the errors noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, C. J., and McCLELLAN and THOMAS, JJ., concur.