First Sav. Bank & Trust Co. v. Elgin

OPINION OF THE COURT.. BOTTS, J. The meritorious question in this case is whether or not a plaintiff is entitled to relief in a suit to quiet title against a defendant who makes claim to the whole of a tract of land, of which plaintiff claims a small part within the interior under conveyances which of themselves are insufficient as to description to identify the land claimed; no identification by extrinsic evidence being made. Plaintiff, the First Savings Bank & Trust Company, filed suit against several defendants to quiet its title to certain small tracts of land designated in the record by the letters A, B, C, D, E, F, G, and H, all lying within the exterior boundaries of the Cbilili grant in Bernalillo and Torrance counties. Defendant the Es-tancia Investment Company defended on the ground, among others, that it was the owner of a specifically described tract of 1,500 acres out of the east end of said grant and within wbicb the tracts D, E, and F, as described in the original complaint, are located. These tracts are described in the complaint by a survey tied to an established corner setting out the metes and bounds by courses and distances. They are unfenced, and no one is in the actual possession thereof. No question is raised as to the sufficiency of this description to identify the land, but at the trial plaintiff failed to identify the land attempted to be conveyed by the various deeds under wbicb plaintiff claimed, with the land as described by the survey. Plaintiff after the bearing asked and was granted leave to file an amended complaint wherein an additional description was set out, copied verbatim from the deeds, not alleging that the land so described is the same as that described by the survey; but, from all that appears from the amended complaint, the new description might well be of land entirely different from that first described. the description of tract E may be taken as a fair representation of the character of the description contained in the several deeds. None of them contained a description more definite, and that in some of them is even less definite. the tract is described as follows : “That tract of land in the Chihli grant, situated at the place known as the town of Chliili, measuring from north to south 1,000 yards, and from east to west 600 yards. Bounded on the north by the lands of Gil Gutierrez; on the isouth and west 'by lands of the Chilili grant; on the east 'by landsl of Ramon; Moya and formerly being the land of Adelaido Garcia and Adelubina Mora de Garcia.” Tract F is supposed to be made up of a large number of smaller tracts. All claims, both those of plaintiff and ¿hat of defendant, are based on alleged direct or mesne conveyances from the board of commissioners of the Chilili gTant. The only evidence offered in an effort to identify the land described in the deeds with the land described in the original complaint, or at all, was the testimony of a surveyor who had no personal knowledge of the boundaries, either of the land in suit or of that by which it purports by the deeds in certain instances to be bounded, and upon it becoming plainly apparent that the witness’ identification of the land was based upon pure hearsay, and no other evidence being offered by which the surveyor’s lines could be validated, the court, on motion of -the defendant, struck out the testimony. This ruling of the court is complained of as error and may as well be disposed of at this point. The record discloses that the surveyor, when he went on the ground prior to the suit for the purpose of making a survey by which the land could be definitely described and located, made inquiries of various persons as to purported boundaries and locations and undertook to determine for himself, from the result of such inquiries, what the boundaries and locations should be. The persons interrogated by this surveyor were not examined in court relative to their knowledge upon which their statements to him were based, and, in fact, when the defendant undertook to cross-examine one of these witnesses concerning this matter, successful objection was made by the plaintiff that it was not proper cross-examination; the examination in chief having been confined to an entirely different point. To make evidence of this character admissible would 'be to give a surveyor judicial powers and to recognize his right to determine a controverted fact upon the unsworn statements of witnesses whom an adverse party has no opportunity to cross-examine. Plaintiff cites us no authority, and we know of none, which excepts evidence of this character from the operation of tbe hearsay rule. The court was correct, therefore, in striking out the evidence. The court entered a decree quieting plaintiff’s title to all of the tracts, except E and F. Both parties appeal, the plaintiff questioning the correctness of the court’s decree as to the tracts E and F, and the defendant questioning the decree as to tract D. With respect to the defendant’s appeal, plaintiff raises the objection that the only appeal bond filed in the case was that filed by plaintiff, and that defendant’s appeal must fail for want of a bond, on authority of Hernandez v. Roberts, 24 N. M. 253, 173 Pac. 1034, construing section 15, c. 43, of the Laws of 1917. With this contention of plaintiff we agree. Our statute makes no provision for a cross-appeal, as such, so that where both parties to a judgment appeal therefrom, each, in order to give this court jurisdiction to consider his appeal, must file the bond required by statute. Defendant’s failure to file an appeal bond precludes any consideration of the judgment in so far as it affects tract D, and leaves only tracts E and F before us. It is readily apparent that the land cannot be located. or identified solely from the descriptions contained in the deeds, but the plaintiff^ complains that the trial court held the conveyances void for insufficiency of description, and assigns error in this respect on' the ground that the land might be located by extrinsic evidence. We do not so understand the ruling of the court. The deeds were admitted in evidence over the objection of the defendant, and plaintiff was given an opportunity to aid the description by extrinsic evidence; but with this opportunity presented to it, and after an effort to so aid the description, the land still remained unlocated and unidentified. The court specifically found by finding of fact No. IV that the evidence failed to identify any of the lands, except tract D, claimed by the plaintiff within the portion of the grant claimed by the defendant so as to enable the court to ascertain the location of sncb lands, and that the claim of the plaintiff to sncb lands, except tract D, is not well founded. In support of defendant’s argument that the court correctly refused to qiiiet plaintiff’s title because of the failure to locate and identify the lands, counsel cite the following authorities: McArthur v. Porter, 6 Pet. 205, 8 L. Ed. 371; 15 Cyc. 144; Webster v. Harris, 111 Tenn. 668, 69 S. W. 782, 59 L. R. A. 324; Jarvis v. Lynch, 157 N. Y. 445, 52 N. E. 657; Northern Ry. Co. v. Jordan, 87 Cal. 23, 25 Pac. 273; Gittings’ Lessee v. Hall, 1 Har. & J. (Md.) 14, 2 Am. Dec. 502; Cottingham v. Hill, 119 Ala. 353, 24 South. 552, 72 Am. St. Rep. 923; Munger v. Grinnell, 9 Mich. 544; and Harrisburg v. Crangle, 3 Watts & S. (Pa.) 460. An examination of these authorities discloses that they are discussing the rule in ejectment cases, but we also find that a similar rule has been applied by courts in suits to quiet title. In Kadderly v. Frazier, 38 Or. 273, 63 Pac. 487, the trial court sustained a demurrer to the complaint on the ground that the premises, title to which was sought to be quieted, were insufficiently described. the Supreme Court of Oregon said: “The question presented for consideration is whether the complaint describes plaintiff’s land wiht sufficient certainty for identification so that a decree can be predicated thereon. It would be very difficult to say, from an inspection of the language of the complaint as quoted above, what part tof the L. .B. Morgan donation land claim had been levied upon by the sheriff. In Ward v. Janney, 104 Ala. 122, 16 South. 73—a suit to quiet the title to relal property — -the complaint, in respect to the description of the premises, contains this averment: ‘The following real estate, situated near the city of Montgomery, Alabama, namely, five acres of land, being a part of lot number five according to the survey made by A. J. Pickett of the land of Mrs. Westcott;’ and it was held that the description was insufficient, and that the complaint was vulnerable to a demurrer interposed upon that ground. In the case at bar, the plaintiff not having described the real property with sufficient certainty for identification, no error was committed in sustaining a demurrer thereto, and hence the decree is affirmed.” The Supreme Court of Alabama, in the case of Inge v. Demouy, 122 Ala. 169, 25 South. 228, in discussing the question of whether or not a complaint wherein the land was not definitely described was sufficient to withstand demurrer, said: “The ground of demurrer in respect to the description of the land, as given in the bill; was g'eneral as to the three separate lots therein referred to and described. The description of the first lot mentioned is: ‘That certain lot on the south side of Dauphin street, between Conception and Joachim streets, having a front twenty-eight feet and seven inches on Dauphin street, by a depth of one hundred and ten feet, more or less, being next east of Sangrouber.’ The decree in a case of this kind, as we have heretofore said, is not intended to be presently executed, but is to stand for all time as a muniment of title. This description is noc void for uncrtainty, in a bill where the decree is to be presently executed. It is one of those uncertain descriptions, in' a case of this character, which may be aided by parol, and comes within the maxim, ‘Id certum est quct certum reddi potest.’ Where Sangrouber’s lot is, could now be easily ascertained by parol; and the description given would enable a surveyor, at the present time, to locate it. and thereby locate the lot referred to in the bill. Homan v. Stewart, 103 Ala. 650, 16 South. 35; Griffin v. Hall, 115 Ala. 482, 22 South. 16 2. But Sangrouber’s possession and ownership of his lot are not necessarily continuous, and such a description as the one given is, therefore, necessarily ephemeral. The description, in order to meet the requirements of the statute, should have been of a character sufficiently certain to identify the lot always hereafter, in its muniments of title. The landmarks employed, we apprehend, fall short of that certain, continuous identification of the property which is necessary. The descriptions of the other two lots seem to be sufficiently certain. They are enduring. Ward v. Janney, 104 Ala. 122, 16 South. 73. But, as stated, the demurrer went to the whole bill, in which two lots were, and the third was not, well described; and was, therefore, properly overruled.” See, also, College Corner, etc., Co. v. Moss, 92 Ind. 119; Jones v. Mount, 30 Ind. App. 59, 63 N. E. 798; Ratliff v. Stretch, 117 Ind. 526, 20 N. E. 438; Ward v. Janney, 104 Ala. 122, 16 South. 73. It is true the defendant 'did not demur to the complaint in this case, but it must be remembered that the original complaint was not defective in this particular, since it described the premises by what purported to be & survey by courses and distances tied to recognized and established corners, and, while the record does not show any of the proceedings relating to a motion by plaintiff for leave to file the amended complaint wherein the new and uncertain descriptions were first set out, except the ruling of the court permitting it to be filed, which was seven months after the hearing of evidence was closed and some two weeks ibefore the amended complaint was actually filed, the bill of exceptions does show that the identity of the premises claimed by plaintiff was one of the principal issues in the case and was a controversy around which much of the record revolves. But the authorities are not all with respect to the sufficiency of a complaint to withstand demurrer on the ground of indefiniteness of description. In the case of Craig v. Mings, 144 S. W. 316, it appears that a party owned two adjoining tracts of land; the north boundary line of one being the south boundary line of the other. One of these tracts was conveyed to the plaintiff and the other to the defendant. The plaintiff filed suit against the defendant to quiet his title, and the court failed to determine the exact boundary line between the two tracts. In that case the boundary seems to have been, the sole question at issue. The Court of Civil Appeals of Texas held that the judgment was erroneous, saying: “From the statement made it is apparent, we think, that the judgment is erroneous. Viewing the controversy, as the parties and trial court seem to have viewed it, as one involving only the location of the boundary line between the two tracts of land, the judgement did not determine it. The purpose of the suit, so viewed, was left wholly unaccomplished by the judgment. The court should have determined the location on the ground of the line between the two tracts, and by his judg-ment should have so described and identified it as to have enabled an officer charged with the duty of executing a writ of possession to go upon the ground, and, ‘without exercising judicial functions, ascertain the locality of the line fixed by the judgment.’ Wilhelm v. Bauman, 133 S. W. 292. ‘If the judgment does not accomplish that result,’ said the court in the case cited, ‘it is of no avail and should be set aside on appeal.’ ” • In Hill v. Bamer, 8 Cal. App. 58, 96 Pac. 111, the trial court had failed to establish the boundary between tbe plaintiff and one of tbe defendants, and tbe appellate court refused to uphold tbe decree. It was there said: “The language of the finding and of the judgment as to the description of the land is a repetition of that contained in the complaint, and is too general to furnish any definite idea of the exact location of the boundary lines of the lots. This is obviously insufficient. In order to give stability to the judgment it and the corresponding findings should describe the land with such definiteness as to enable the parties to. know from such description the precise limits or the location of the boundary lines thereof. Porter et al v. Counts, supra: Shaw v. Hill, 79 Mich. 86, 44 N. W. 422; Wickersham Banking Co. v. Rice, 137 Cal. 506, 70 Pac. 546. Measured by these tests, the findings and judgments in the cases at bar cannot for a moment be upheld.” In this case it is unnecessary for us to decide whether tbe rule requiring definiteness of description is applicable to a case where there is no overlapping of claims, nor do we need to decide whether the decree of the court would have been void or only erroneous had the plaintiff prevailed. It may be that a particular stipulation in the contract under which the defendant acquired title to the large tract, within which plaintiff’s claims seem to have their indefinite situs, may require us to consider the question here presented as though it had arisen between a plaintiff grantee seeking to quiet his title against a defendant grantor to the extent that no defenses are here available to the defendant which would not have been available to the board of commissioners of the Chilili grant. Assuming this to be true, the real question before us is therefore whether or not the assumed grantee has established title to lands within the external boundaries of the assumed grantor’s larger tract. In arriving at the correct solution of this problem, it is the province and duty of the court to place itself as nearly as possible in the situation of the parties to the’ instruments under which title is claimed, and endeavor to discover and give effect to the intention of the parties. Simpson v. Blaisdell, 85 Me. 199, 27 Atl. 101, 35 Am. St. Rep. 348. Much is said in tbe boobs about deeds which, are void because of uncertainty in the description of the premises attempted to be conveyed, but it is not to be understood that the sufficiency of a description in a deed is to be measured by any inflexible rule or set of rules. The test in every case, as in the case of contracts other than deeds, is whether or not the intention of the parties can be discovered and effectuated. If so, unless the rights of third parties intervene to prevent, the deed is valid; if not, it is invalid. So, if a deed contains an indefinite and uncertain description, and the parties, either before the execution of the instruments or afterwards, by agreement, go upon the ground and mark out the boundaries of the land intended to' be conveyed, the deed is valid (Simpson v. Blaisdell, supra), and the same result would undoubtedly follow if the grantee should go upon the lands of the grantor and mark out the borind-aries and go into possession of the land claimed under the conveyance and so remain in possession with acquiescence of the grantor. But in this ease there is no agreement between the parties as to what is intended to be conveyed, the boundaries are not marked, no one is in actual possession, and the plaintiff undertook and failed to identify and locate the subject-matter of the several alleged conveyances by extrinsic evidence. How, then, can the court give effect to the intention of the parties when the intention concerning the subject-matter of the alleged conveyances is not shown? How can the court protect the plaintiff in.its title and right to possession of the land alleged to have been so conveyed when the land cannot be identified? How could the court have barred and estopped the defendant from claiming or asserting title to land within the outer boundaries of its larger tract without pointing out to the defendant definitely the lands to which the court’s decree was applicable, and how could plaintiff’s title be quieted as against the defendant unless the defendant were so barred and estopped? Finally, bow could the court have designated to the defendant the land, title to which it was sought to be barred and estopped from asserting unless the plaintiff first designated such land to the court? This the plaintiff failed to do, and the court did not err in rendering judgment for the defendant. The other questions raised become of no importance, in view of our decision on the main point. The decree of the lower court should be affirmed and it is so ordered. PARKER, C. J., and HOLLOMAN, District Judge, concur.