Garner v. Morris

ANDERSON, O. J. Counts 1 and 2 of the complaint are for a breach of covenant of seisin as distinguished from covenants for quiet enjoyment and of warranty of title. “In declaring a breach on a covenant of seisin, or of good right to convey, all that is necessary is to negative the words of the covenant generally; but, as we have seen, this is not sufficient in declaring on the covenants for quiet enjoyment and of warranty of title.”:—Prestwood v. McGowin, 128 Ala. 267, 29 South. 386, 86 Am. St. Rep. 136; Copeland v. McAdory, 100 Ala. 559, 13 South. 545. “Assignment of breach of covenant of seisin need not specify in what respect the title was defective. It is sufficient to show that the defendant had no title or [664] right to convey at the time of making the deed.”—5 Am. & Eng. Ency. of PI. & Pr. p. 374, par. 4. The tidal court did not err in overruling the defendant’s demurrers to said counts 1 and 2. Count 3 of the complaint sets up a claim for special damages in defending a suit involving the title to and possession of the land in question, and the averments thereof conformed to the rule as applicable to such suits as laid down by this court in the case of Chestnut v. Tyson, 105 Ala. 162, 16 South. 723, 53 Am. St. Rep. 101. The defendant’s pleas were manifestly bad, or the defense attempted was provable under the general issue-but, Avhether all of them were. provable under the general issue or not, the defendants were given leave to plead in short and by consent all matter that should be specially pleaded, and the record shows that they were permitted to introduce in evidence the matter set up in said special pleas. If there was any error in striking-said pleas, it was error without injury. The deed from Garner to the plaintiff included by proper description, as per the government numbers, the land in question, and, while the land as conveyed was subsequently designated as “the home place formerly owned by R. W. Wynn, deceased,” these were but general words of description and cannot override a particular description. “It is a principle long and well settled that where a conveyance describes the premises by clear and definite metes and bounds, from which the boundaries can be íeadily ascertained, such description shall prevail, and determine the boundaries and location, over general Avords of description. * * The presumption is the grantor intended to convey the land thus particularly and clearly designated. This presumption may be rebutted in a court of equity, but is conclusive in a court of law.”—Guilmartin v. Wood, 76 Ala. 204. [665] The trial court did not err in admitting the deed in evidence, because of the defendants’ contention that it did not include the land in question, and was confined to what land was owned by and actually constituted the home place of R. W. Wynn at the time of his death. The trial court could have well excluded all of the defendants’ evidence which tended to override or contradict the special description of the land; but as much latitude was given the defendants, by permitting them to introduce evidence tending to override said special description and to show that it was not the intention of the grantor to include the land in question in the deed, the plaintiff had the right to rebut this, and the fact that the bond for title included all the land as described in the deed, and which was not therein designated as the Wynn home place, was some evidence that the parties, did not contract for any less land than what was described in the bond for title. It was permissible, also, for the plaintiff to show that the price was fixed by the acre, and not in bulb, regardless of the number of acres, as the correspondence between the amount per acre and the consideration paid would be a circumstance for the consideration of the jury in determining the number of acres the parties intended should be included in the deed. Nor was there error in permitting the plaintiff to show that R. W. Wynn mortgaged the land in question, as this was some evidence that he was claiming it, whether he had a good title to it or not, and that he regarded it as a part of, or belonging to>, his home place, and which had a tendency to harmonize the general and special descriptions in the deed. There was no error in giving charges 1 and 2, requested by the plaintiff. If they are faulty, it is because they were too favorable to the defendant by hypothesizing needless facts, as Garner was bound, in law, by the de [666] scription of the land and the number of acres sold, whether Wynn owned it or claimed it or not. There was no error in refusing charge C, requested by the defendant. The plaintiff testified that he was to pay $150 attorney’s fees; but it may be that he should not have recovered over $75, as the proof shows that said last sum was a reasonable fee, yet charge'C is so worded as to be misleading, and might convey the idea to the jury that they could not award the plaintiff anything under the item of the complaint claiming attorney’s fees. It does not instruct that the jury cannot award the plaintiff $150, or over $75, or only what the proof shows was a reasonable fee, but in effect charges that the plaintiff cannot recover under the item for attorney’s fees, or that he was not entitled to recover any attorney’s fees; yet, if not entitled to recover the $150, he was entitled to recover a less sum under the item claiming $150, and which was the only item in the complaint claiming attorney’s fees. The judgment of the circuit court is affirmed. Affirmed. Mayfield, Somerville, and Gardner, JJ., concur.