Carling v. Wilson

McCLELLAN, J. Statutory ejectment by Wilson, appellee, against Carling, appellant. The plaintiff’s right to recover, as appears from this record, depends upon the efficacy, as a conveyance, of the instrument purporting to have been executed, on September 80, 1908, by T. R. and M. H. Holt, to Albert F. Wilson. The report of the appeal will contain a copy of that instrument. It appears, with certainty, from the evidence, that the Holts owned a large area of land in fractional sections 16, 21, and 22, of township 19 N., range 18 E., on the west and south (in section 16) sides of the Coosa river. It was the evident purpose of the Holts to convey to Wilson a part of this area. The court is of the opinion that the purpose was not effected by the instrument of September 30,1908, for the reason that no valid description of the real estate to be conveyed was made therein. In short, the instrument is void on account of a wholly insufficient, uncertain description of the real estate intended to be conveyed. Accordingly, the affirmative charge, requested by the defendant, was erroneously refused. In the first place, if it be assumed that exactly 25 acres was intended to he conveyed, and also that the [87] call for state-owned land was to be found in tbe south line of section 16, the instrument entirely fails to define the west line of the area, and, so omitting, likewise is wholly silent as to the shape in which the 25 acres should lie. Indeed, accepting the assumptions stated, it is clear that an almost indefinite number of 25-acre areas, of as many different formations, could be laid off, touching each of three boundaries so assumed to be fixed by the instrument, and still, in each instance, conform to the every requirement of the description of the instrument. For instance, if the width of the strip at the north end (along the sixteenth section’s south line) assigned by the plaintiff as the correct north boundary, was approximately doubled, and the apex of the inverted triangle of the 25-acre area rested on the land of Cohn & Goldberg at the south, the boundaries plaintiff finds fixed in the instrument would be adhered to. Appeal is made by counsel for appellee for the application of the principle applied in Wilkinson v. Roper, 74 Ala. 140, 148, where it was held that a deed describing “10 acres off the northwest corner of said quarter section” convéyed “a square, and bounded by four equal sides,” and in Green v. Jordan, 83 Ala. 220, 224, 3 South. 513, 514 (3 Am. St. Rep. 711), where it was held that an exception of “2 acres in the southeast corner” of a governmental subdivision meant a square of that area, bounded by equal sides, and in Gaston v. Weir, 84 Ala. 193, 195, 4 South. 258, where it was held that description of “47% acres of the west part of the north half of the northwest fourth of section 1” effected to convey a parallelogram containing that area. The like doctrine was adverted to in Louisville & Nashville Railroad Co. v. Boykin, 76 Ala. 560, 565. [88] The doctrine of these decisions cannot he availed of with respect to the instrument under consideration. In them the shape of the definite area Avas indicated by the instruments there involved. They referred, and were referred, to-bases of straight lines, thereby affording data for accurate ascertainment of the particularly undefined lines. Here the Coosa river connects (upon the assumptions stated) the north and south lines. As appears, the river boundary is not straight. It is tortuous; and this is true, Avhether the thread of the stream, the crest of the west bank thereof, or the low-water mark therein, is taken as the particular basis of the eastern boundary. Perhaps it is not necessary to say that in so determining Ave do not ignore this factor, clearly effective in Wilkinson v. Roper, supra, in the pertinent particular, viz: It was pronounced that the parties did not contemplate that the figure of the area should be “fanciful, capricious, or unique.” That observation was peculiarly apt Avhcre the lines given Avere straight and those to be ascertained must have been straight, to the end that squares and parallelograms might be marked out to circumscribe the definite area intended to be conveyed or reserved. Here the east boundary, viz., the Coosa river, plainly forestalled any possibility of the carving out of a symmetrical figure, such as a parallelogram, extending Avestward from the “Coosa river.” Its tortuous course, obviously, forbade and forbids the marking out upon the land of any figure of symmetrical form. Again, the evidence leaves no room for doubt that no state-OAvned land lay north of the area plaintiff insists Avas described in the instrument. And it is equally certain that Holt himself OAvned that part of the sixteenth section lying north of the area plaintiff contends Avas conveyed by the instrument. In such state [89] of evidence, no presumption, arising from the fact (if judicial knowledge that the state .originally held title to all sixteenth sections for school purposes can he taken), could avail to give verity and effect to the language of the instrument asserting state-owned lands to he the north boundary of the área intended to be conveyed. It is by no means certain that the reference to state-owned land was to such title land outside of fractional sections 21 and 22; for the other boundaries given, viz., the Coosa river, the lands of Cohn & Goldberg, and those of Holt, are all in fractional sections 21 and 22. If the state had owned lands in fractional sections 21 and 22, touching the Coosa river on the west, obviously that would have limited the north boundary to a line clear of the south line of fractional section 16 west of the Coosa river. The presumption alluded to being unavailing under the evidence before us, we think that to fix the south line of section 16 as the north boundary of the area plaintiff claims to have been conveyed to him could be an arbitrary act only — a process that cannot be sanctioned. Furthermore, the instrument, treating the consideration to be (conditionally) paid, refers to this area as “25 acres.” In the description of the property it stipulates “25 acres more or less.” And in setting down particularly the condition of payment, it defines a vitally important element thereof as the payment of “$50 an acre for the 25 acres more or less.” The west line being subject “to be established by survey,” it is evident that there was no intention to fix in the instrument an exact definite area of 25 acres. The words more or less, ordinarily, mean about.—Hurt v. Freeman, 63 Ala. 335. For this reason, also, cases like Hayes v. Martin, 144 Ala. 532, 40 South. 204; Wilkinson v. Roper, supra, Green v. Jordan, supra, and Gas90 ton v. Weir, supra, where exact, definite areas were specified cannot be .appealed to as authority in this instance, where the area is left so uncertain. We. have considered Bromberg v. Yukers, 108 Ala. 577, 580, 19 South. 49, 51, cited by appellee’s counsel, as supporting the proposition that the description, in the instrument in hand, of “25 acres more or less * * * must be construed to mean 25 acres.” All that is there ruled, as here pertinent, is that the Avords more or less .“used in a deed of conveyance, * * * should be construed with reference to the particular circumstances .under and in relation to which they are used.” This does not, as appears, affirm the proposition to support which it is now cited. In order, in any case, to avail of the principle given effect, as before stated, in Wilkinson v. Roper, and the other decisions of that line to which Ave have referred, where metes and bounds are not fully given, a definite area must be fixed in the instrument. If not. so fixed, that doctrine cannot be appealed to to save the instrument. Other questions presented by the record and discussed in briefs are not considered. The affirmative charge was due the defendant. For its refusal, the judgment is reversed, and the cause is remanded. Reversed and remanded. All the Justices concur.