Pettit v. Gibson

77 So. 703, 201 Ala. 177, 1917 Ala. LEXIS 102

• Court: Supreme Court of Alabama
• Decided: November 15, 1917
• Docket: 8 Div. 991.
• Status: Published

Opinion

THOMAS, J.

This is an action of statutory ejectment. The cause was tried by the judge without a jury, the trial resulting in a judgment in favor of the plaintiff for the land sued for, as to which the defendant had pleaded not guilty.

The rule has been announced by our court that, where land is described in a deed by a particular description which is repugnant to the general description therein employed, the particular description must control.

[1] The deed on which the defendant relied for title contained two descriptions; one indicating the land by governmental subdivisions, and the other designating the premises as “the home place of the late Thomas Pettit, Sr., now deceased.” The description by government survey must prevail. Garner et al. v. Morris, 187 Ala. 658, 65 South. 1000; Garter v. Chevalier, 108 Ala. 563, 19 South. 798; Guilmartin v. Wood, 76 Ala. 204; Clements v. Pearce, 63 Ala. 284; Sikes v. Shows, 74 Ala. 382; Devlin on Deeds, § 1039; 1 Greenl. Ev. (Redf. Ed.) § 301; Sedg. & Waits, Land Titles, § 458; McIver v. Walker, 9 Cranch, 173, 3 L. Ed. 694; 1 Rose Notes, U. S. Rep., 656.

[2] In Sumner v. Hill, 157 Ala. 230, 47 South. 565, the particular description covered only a part of the land included in the general description; and it was properly held that the general description, in such cases, will prevail. Marshall v. McLean, 3 G. Greene (Iowa) 363; Bott v. Burnell, 11 Mass. 1-63. The Sumner Case has no controlling effect upon the conveyance on which defendant rested her title and right of possession to the land sued for.

[3-5] So much for the defendant’s title. Yet the plaintiff must recover on the strength of his own title, and not on the weakness of the defendant’s title. The bill of exceptions shows that the plaintiff claimed title to the land in question under a purported sale for division among joint owners,-by order of the probate court. The decree of confirmation is the final decree in judicial proceedings for the sale of lands. Hutton v. Williams, 35 Ala. 503, 76 Am. Dec. 297; Austin v. Willis, 90 Ala. 421, 426, 8 South. 94; Kellam v. Richards, 56 Ala. 238; Gartman v. Lightner, 160 Ala. 202, 49 South. 412; McQueen v. Grigsby, 152 Ala. 656, 44 South. 961; Sayre v. Elyton Land Co., 73 Ala. 85; Code, §§ 5222, 5226. See, also, section 3220 of the Code. No such decree is shown by the bill of exceptions, nor does the order of sale contain the lands described in the pleading in the instant case. The commissioner nominated by the court to make the sale of lands of joint tenants was authorized to sell only the lands described in the order or decree of the probate court. The fact that the lands in question are embraced in the petition for the sale, and in the report of the sale by said commissioner, in the absence of an order of sale .and an order or decree of confirmation of such sale, would not authorize the introduction of the deed in evidence over the due objection of the defendant on the aforesaid ground.

We may observe that the recitals of the bill of exceptions present some confusion as to whether the lands held by defendant are in section 6 or in section 7, while the pleading is to the effect that they are in section 6. In view of this apparent confusion as to the true location of the lands sued for or held by the defendant under the deed from certain of the heirs at law of Thomas Pet-tit, Sr., deceased, of date October 7, 1901,-the case may fall within the class of cases wherein ‘courts of equity have jurisdiction to enforce a conveyance of lands according to the terms of a family settlement, or partition thereof, long acquiesced in by the parties in interest, and whore it would be manifestly unjust to disturb such settlement (Betts v. Ward, 196 Ala. 248, 72 South. 110; Carter v. Owens, 41 Ala. 217), as well as jurisdiction to reform instruments pursuant to agreement of all the parties thereto (7 Mayf. Dig. 280; Goulding Fert. Co. v. Blanchard, 178 Ala. 29S, 59 South. 485). Such matters are not cognizable at law.

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.