Bottoms v. Dykes

HARALSON, J. This case was here on a former appeal. The bill was filed to have a vendor’s lien on land declared and enforced. The entire defense was to have [583] an abatement of the purchase money, to the extent of the value of eleven acres of the land sold, five acres m one section, 29, and six acres in another — section 28. The facts on this appeal are not materially different from those presented on the former, and on which this court decided all that is now, on the present record, presented for review. "We then held, that as for the five acres in section 29 the respondent was entitled to an abatement of the purchase money, to the extent of its value ; and, that as to the six acres in section 28, the deed of the complainant to the respondent was void for uncertainty of description ; that it simply described it as “a portion of the N. W.i of N. W.i and a part of S. W.i of N. Wi of sec. 28,” inT. 17, R. 25, without specifying any number of acres; that the particular parts of said section 28 intended to be sold could not be ascertained ; that they had no landmarks, which would enable a surveyor to find the land, and that it did not come within the maxim, “Id certum est, quod certum reddi.” — Dykes v. Bottoms, 101 Ala. 390; Black v. Tenn. C. I. & R. R. Co., 93 Ala. 109; L. & N. R. R. Co. v. Boykin, 76 Ala. 560; Wilkinson v. Roper, 74 Ala. 141. When the cause, on reversal, returned to the chancery court, the court allowed the respondent to file an amended answer in the nature of a cross-bill, in which he undertook to identify the particular six acres of land in said section 28, which he understood to be conveyed to him by said deed, and thereby to make an attempt to make that certain, which we held could not be done. The learned chancellor evidently overlooked, for the time, the fact, that the respondent did not seek a cancellation of the deed and a return of the purchase money, or a reformation of the deed, but his purpose was to hold the land under a deed recognized by him to be valid, and claim simply an abatement of the purchase money, and that under a clause of the deed declared by this court to be void. It is unnecessary to repeat here what we said on this question in our former opinion. No amount of averment and proof could make said deed certain to that six acres, and the effort to do so should have fallen on the objections interposed by the complainant . The decree of the.conrt below would have been correct if no mistake was made in the calculations, except for the [584] abatement of $200, the ascertained value of the sis acres of land which was improperly allowed. In the record before us, it is stated that there are 160 acres of land, whereas, the land numbers given show only 120. The answer admits 160 acres. Lest some injustice maybe done by rendering a decree here, we will reverse and remand the cause. Reversed and remanded.