Bell v. Leggett

SAYBE, J. Action of statutory ejectment by appellants against appellees. Plaintiffs claimed as heirs at law of one Bell. Defendants claimed under a mortgage deed of trust from Bell to one Hughes, foreclosure by bill in equity with due process, and mesne conveyance from the purchaser. In the mortgage the land in controversy was described as follows: Beginning 80 rods west of the south of the southeast corner of section 7, township 16, range 9, in about one rod north of Oxford road in section 18, running north within 173 rods of north line of section 7; thence west 'within 49 rods of west line of said section; thence south to one rod of mill ditch; thence east one rod from said ditch to where fence crosses same; thence Avith the meanderings of said fence to the corner east; thence east to the beginning corner near the road — making 180 acres more or less. A copy of the mortgage deed of trust Avas made an exhibit to the bill for foreclosure, but in the body of the bill the land was described as “beginning eighty rods west of south of the southwest corner of section seven, township sixteen, range nine, in about one rod north of Oxford road in section eighteen, running north,” and so on. In the subsequent proceedings in the equity court, including the decree of foreclosure, deed to the purchaser, writ of possession, and in the purchaser’s deed to the defendants, the descriptions followed that in the body of the bill. The description of the [446] land sued for in the complaint followed that in the mortgage deed of trust. The argument for appellants is that “there was a patent ambiguity in the descriptions of the lands in controversy, that said descriptions are uncertain and vague, and that the foreclosure was Amid.” This argument is elaborated, of course, and thought to be sustained by the citation of authorities; but to no effect. The description found in the court proceedings and in later deeds is not only ambiguous; it is impossible. There is in section 18 no point 80 rods or any other distance west, or south, or southwest, of the southwest corner of section 7. There may be also innumerable points about one rod north of the Oxford road in section 18 and in other sections. And, since there is no authority for singling out any one term in the description of the starting point and locating the error there rather than elsewhere, it must be conceded that the location of the starting point, within itself considered, is defective, obscure, and insensible. But that is not necessarily fatal to the description. The other calls of these several muniments make it clear Avhat the mistake is, and put the description, properly considered as a Avhole, into harmony Avith that of the mortgage deed of trust and the complaint. On the authority of Walsh v. Hill, 38 Cal. 481, a case closely similar in fact and principle to the case at hand, it is stated in 2 Delvin on Real Estate (3d Ed.) that: “When a conflict arises betAveen the starting point and other calls, the starting point, if it is' fixed, certain, and notorious, Avill generally prevail. But if the other calls may as readily be ascertained, and are as little liable to mistake, they are entitled to as much consideration as the first. If they all agree, they control.”- — Section 1033. This is a reasonable rule of construction, and comports with the other rule which requires that instruments be [447] liberally, construed for tbe purpose of giving them some effect. In this case the starting point is not certain; it is ambiguous. However, other calls of the several descriptions in question fix the north line of the property as an east and west line 173 rods south of the north line of section 7. .The west boundary is fixed as a north and south line 49 rods east of the west line of the same section. This line runs to a point one rod distant from a mill ditch. Thence, following in part a fence located by the competent testimony of the surveyor, and in other part courses the points of departure of which are fixed by reference to the ditch and the fence, the boundaries, are brought to a point 80 rods south of west of the southeast corner of section 7, from which point a north and south line, as called for in the first line of the description, extended to a point 173 rods south of the north line of section 7 incloses an area of approximately 180’ acres. Thus the land, notAvithstanding the ambiguity of the language used in describing the initial point of departure, is made certain by all other calls conspiring to the same end, and is identified as the land disposed of in the mortgage deed of trust as well as that described in the foreclosure proceeding and subsequent deeds. That proceeding and those deeds Avere not, therefore, lacking in validity on account of any ambiguity in the descriptions of the property involved and conveyed. This disposes of the case. The action of the circuit court in giving the general affirmative charge for the defendants was correct, and the judgment avüI be affirmed. Affirmed. All the Justices concur except Dowdell, C. J., not sitting.