Tally v. McInnis

McLean, J.,

delivered the opinion of the court.

' The facts of this case are as follows: The common source of title was D. E. Mclnnis, and on March 2, 1898, D. E. Mclnnis and his wife donated to the town of Hattiesburg, for street purposes only, part of lot 4, in block 164, of the town of Hattiesburg. A description as found in the instrument donating the property is as follows: “Part of lot 4 in block 164 of the Crittenden survey of the town of Hattiesburg, Perry county, Mississippi, and more particularly described as follows, to wit: Commencing at the northeast corner of lot 4, and running in a northwesterly'direction 35 feet; thence S. E. 80 feet; thence north to the point of beginning.” There is no evidence in the record when, if ever, the city or town of Hattiesburg accepted the donation, or when, if, indeed, at any time, possession of the property was taken under this conveyance, except there is a letter or notice, addressed to J. R. Tally, bearing date “Hattiesburg, Miss., July 12,1909,” signed by the city clerk of Hattiesburg, wherein it is recited that: “It appearing to the mayor and board of aldermen of the city of Hattiesburg that on the 2d day of March, 1898, D. E. McInnis sold and conveyed to the city a certain parcel of land [here follows a description of the land as described in the deed].” This notice further reciting that: “It further appearing that afterwards D. E. Mclnni-s sold and conveyed the entire lot 4 to Arnold, without reserving said parcel of land conveyed to said city, and, further, that a deed has been executed to J. R. Tally by persons claiming through said Arnold the entire lot: Therefore be it resolved that the city of Hattiesburg does hereby assert its claim to said parcel of land conveyed to it by said D. E. McInnis, and the city clerk is hereby directed to notify J. R. Tally of said claim.” D. E. McInnis and his wife, Ella Mcliinis, on January 25, 1902. sold and conveyed by warranty deed to J. T. Arnold the whole of said lot 4, and J. R. Tally by mesne conveyances became the owner of said lot 4.

When Tally received the notice from the clerk of the city of Hattiesburg, in pursuance of the resolution adopted by the board of mayor and aldermen of that city, he at once surrendered possession of a strip of land supposed to be described in the deed from McInnis and wife to the town of Hattiesburg. In other words, acting upon the assumption that said conveyance to the town of Jlattiesburg conveyed a better title to the property than he (Tally) had received, appellant declined to contest the claim of the city, and brought this suit against his remote vendors for a breach of the covenants of warranty. The defendants demurred to the declaration, assigning, among other grounds of demurrer, that the deed from McInnis to the town of Hattiesburg was void for want of a proper description.

It is unnecessary to notice any of the grounds of demurrer, except the one which is that the deed was void by reason of the description. It is clear and manifest that the description in the conveyance from McInnis and wife to the city of Hattiesburg was void. It is absolutely impossible to ascertain from this description what part of lot 4 was intended to be conveyed. The only point definitely fixed is the point of beginning, which is the northeast corner of lot 4, and from this point, the northeast corner of lot 4, it runs in a northwesterly direction thirty-five feet. How many degrees north or south of a straight northwest course it. is impossible to determine. It will not do to say, as argued by appellant, that the object and purpose was to run thirty-five feet northwest from the northeast corner of lot 4, for two reasons: (1) It does not say “northwest;” and, (2) if it did say “northwest,” then in order to find the other end or point it would be necessary to retrace at least thirty-five feet of the eighty feet given as the other side of the lot conveyed. It will also be observed that from the southeast corner of the parcel attempted to be conveyed the distance is not given to the northeast corner of lot 4. The result is that Tally, the appellant, and plaintiff in the court below, so far as this record shows, has not lost any of the property which was conveyed to him. In other words, there is no breach in the covenants of warranty, and consequently he is not entitled to a recovery.

Affirmed.