Brown v. Guice

Pevton, O. J. :

The tax collector of Franklin county, in the year 1864, sold a part of section 18, in township 7, of range 2, east,” containing one hundred and eighty acres, for the taxes due on said land for the year 1863. The land was assessed to the heirs of Mary A. Carney, deceased, and was purchased by Elijah W. Brown, at said tax sale. The said Brown in 1870 filed his complaint in the chancery court of said county of Franklin, against John K, Ghfi.ce and Mary A. Guice, to perfect his title to said land.

The said defendants answer the bill, denying a knowledge of the material allegations of the bill and call for strict proof thereof, and make their answer a cross-bill, praying that the tax deed be decreed to be delivered up and canceled. And upon a final hearing of the cause upon bill, answer, cross-bill, exhibits and proof, the court dismissed the bill, at mutual cost without prejudice to the rights of either of the parties in an action at law. Hence the case comes to this court by appeal.

We are met in limine in the investigation of this case by the inquiry, whether the tax deed to the appellant is not void for uncertainty.

There is evidently an ambiguity in the description of the land in the deed of conveyance from the tax collector to the appellant. But is it such an ambiguity as may be helped by extrinsic evidence ? The books inform us that there are two kinds of ambiguity in written instruments. The one is called ambiguitas latens (a latent ambiguity), where the writing appears on the face of it, certain and free from ambiguity, but the ambiguity is introduced by evi-deuce of something extrinsic, or by some collateral matter out of the instrument. The other species is called ambig-uitas patens (patent ambiguity), which is an ambiguity apparent on the face of the instrument itself.

“Ambiguitas patens,” says Lord Bacon, “ cannot be helped by averment, for the reason that the law will not couple and mingle matter of specialty, which is of the higher account, with matter of averment, which is of the lower account, in law, for that were to make all deeds hollow, and subject to averment, and so, in effect, to make that pass without deed which the law appoints shall not pass but by deed, and this rule applies not only to deeds, but to written contracts in general. ’’ Broom’s Legal Maxims, 584.

The general rule of law upon this subject is, that a latent ambiguity may be removed by means of parol evidence, but that such evidence is inadmissible to explain an ambiguity apparent on the face of the instrument. Patent ambiguities are to be dealt with by the court alone. But where the meaning of an instrument becomes uncertain, by reason of extrinsic evidence, it is for the jury to determine it. By patent ambiguity must be understood an inherent ambiguity, which cannot be removed, either by the ordinary rules of legal construction, or by the application of extrinsic and explanatory evidence, showing that expressions prima facie unintelligible are yet capable of conveying a certain and definite meaning. Where the law for reasons of policy requires written evidence, to admit oral testimony in its place, would be to subvert the rule itself. The same observation applies where the law prescribes a certain form of written evidence. To allow a defect in the instrument to be supplied by oral evidence would be pro tanto to dispense with the law. Hence, in general, where the law requires a formal, written document, if the document offered in evidence be defective, so that 'it cannot operate without collateral aid, the defect cannot be supplied by oral testimony. . As oral evidence is inadmissible for the purpose of supplying an omission in an instrument where written evidence is required by law, so it is inadmissible to give any effect to a written instrument which, is void in law for inconsistency, repugnancy or ambiguity in its terms, for if a meaning could be assigned by the aid of extrinsic evidence, to that which was apparently destitute of meaning, or if the same instrument could be made to operate in different ways according to the weight of oral evidence, it is plain that the effect would depend, not upon the instrument, but upon the force of the oral evidence, and thus the latter would virtually be substituted for the former.

Hence it will be seen that, according to these principles, parol evidence is never admissible to explain an ambiguity which is not raised by extrinsic facts. Thus, upon a devise to one of the sons of J. S., who has several sons, evidence is not admissible to show that one in particular was meant, and the devise is void for uncertainty. Starkie on Ev. 654.

In the case under consideration, the counsel for the appellant has invoked the maxim id cerium, est quod cerium reddi poiest. This cannot avail him, for the reason that there is nothing in the deed, or referred to therein, by which it can be rendered certain. In the case of a deed, the office of the premises is two-fold; first, rightly to name the grantor and the grantee; and, secondly, to comprehend the certainty of the lands or tenements to be conveyed by the deed, and this may be done either by express words or by words which may by reference be reduced to' a certainty, according to the principle above invoked. So a grant shall be void if it be totally uncertain; but, if the grant refers to another thing, which is certain, it is.sufficient.

Another illustration of this principle may be found in the case of an agreement in writing for the sale of a house, which did not by description ascertain the particular house, but it referred to the deeds as being in the possession of A B named in the agreement. The court held the agreement sufficiently certain, inasmuch as it appeared upon the face of the agreement that the house referred to was the house of which, the deeds were in the possession of A B, and, consequently, the house might easily be ascertained by examination of the deeds, and id cerium est quod cerium reddi potest. Owen v. Thomas, 3 Myl. & K. 353; Broom’s Legal Maxims, 601.

The ambiguity in the case at bar is a patent ambiguity which, as we have endeavored to show, cannot be aided or explained by parol evidence. Starkie on Ev. 655, and 1 Greenl. Ev. 342, § 297. The deed purports to be a sale of part of ¿i section of land and refers to nothing by which that part can be ascertained, and the deed is therefore void for uncertainty. McGuire v. Stevens, 42 Miss. 724.

It has been held by the supreme court of the United States that, if the land granted be so inaccurately described as to render its identity wholly uncertain, the grant is void. Boardman v. the Lessees of Reed, 6 Pet. 345; 1 Greenl. Ev. 350, § 301.

Upon the whole, we think the court below did not err in dismissing the bill.

The decree is therefore affirmed.