Hall v. Long

74 So. 56, 199 Ala. 97, 1916 Ala. LEXIS 282

• Court: Supreme Court of Alabama
• Decided: June 8, 1916
• Status: Published

Opinions

ANDERSON, C. J.

— The description of the land in the conveyance over which this controversy arose is as follows: “The northeast quarter and northeast quarter of - southeast quarter and northwest quarter of southeast quarter and 20 acres more or less of the southeast quarter of the southeast quarter northeast of the Abba creek and west of Brady Mill creek, in section 20, township 6, range 29, containing 260 acres, more or less; and should said Long at any time build a mill on said Brady Mill creek, I agree to give him an easement on the east side thereof so as to secure the ingress and egress to said mill.”

(1) The question involved in this case is whether or not that part of the general description placing certain of the land west of the “Brady Mill Creek” applies to the 20 acres more or less in the S. E. % of the S. E. *4 as lies northeast of Abba creek alone, or also applies to the N. E. % so as to exclude, so much thereof as lies east of the Brady Mill creek from the tract of land conveyed by W. C. Oates to W. O. Long, as the land involved in this suit is all of the E. *4 of the N. E. *4 as lies east of said creek. (The reporter will set out the map on page 12 of the record.)

The deed from Oates to W. O. Long unequivocally and without qualification or limitation conveys the N. E. 1/4, N. E. 1/4 of S. E. % and N. W. 1/4 of S. E. 14, being six full 40’s as per government survey. It does not say so much of the N. E. 1/4 only as lies west of the Brady Mill creek or all of said N. E. 1/4, less so much thereof as lies east of said creek. The last part of the general description as to land west of said Brady Mill creek necessarily applies to the fractional part of the S. E. 1/4 of S. E. 1/4 northeast of Abba creek and estimated at 20 acres, and-the words “more or less” were intended to cover any error in said estimate. The land was sold by metes and bounds, and was supposed to contain 260 acres more or less, being six full 40’s, 240 acres, and as much of the S. E. 1/4 of S. E. 1/4 as was northeast of Abba creek and west of Brady Mill creek, estimated at 20 acres “more or less.” On the other hand, to hold that the words “west of the Brady Mill creek” applied to the N. E. 1/4 would take therefrom 30 or 40 acres on the east side and read into the particular description a conveyance of a fractional quarter section, though said quarter section is conveyed in full without limitation, and would also cut down the quantity from 260 acres to 220 or 230 acres, subject, of course, to a variation as to quantity in either instance, in the estimate of the fractional part of the S. E. % of S. E. 1/4. The fact that the land in the S. E. 14 of the S. E. 1/4 does not lie immediately west of the Brady Mill creek does not compel the last recital'to apply to the N. E. 1/4, as said S. E. 14 of S. E. 14 is west of said creek, and it is not placed in the description as being immediately west. It would do violence to the explicit and unqualified description of the N. E. 1/4 to cut 30 or 40 acres off of the east side by making the creek the dividing line at this point; yet the whole thing can be reconciled by making the words ‘west of Brady Mill creek” apply only to an effort to aid in the description of the fractional part of the S. E. % of the S. E. %, the parties, perhaps, thinking that said creek was nearer to or ran through same.

(2) Nor do we think that the granting of the easement ovér lands of the grantor on the east side of the Brady Mill creek, in the event the grantor wanted to place a mill on said creek, indicates that there was no intention to convey any lands east of said cheek, as the grantor owned other lands east of the creek and the use of wihch may have been necessary for ingress and egress. Moreover, there is a point where the creek is the border line in the lower part of the N. E. %, and it may be that the mill was to be placed at this point, and which would place the east bank on the unconveyed land of the grantor.

(3) There can be no doubt of the soundness of the proposition that, where a deed, is of doubtful meaning, or the language used is ambiguous, the construction given by the parties themselves, as exhibited by their conduct or admissions, will be deemed the true one, unless the contrary be shown. — 13 Cyc. 608. But if the language is plain and certain, acts and declarations of the parties cannot be resorted to to aid a construction. — Dunn v. Mobile Bank, 2 Ala. 152. We think that the deed in question plainly shows that the grantor conveyed all of the N. E. y4, and that it was not reduced by excluding therefrom all that was east of Brady Mill creek. It is also plain that the description as to section, township, and range applied to all the land, and which cannot be limited to the S. E. % of the S. E. 14 simply because the general description as to boundaries was so limited.

The trial court did not err is giving the general charge for the plaintiff, and the judgment is affirmed.

Affirmed.

Mayfield, Somerville, and Thomas, JJ., concur.