Opinion
No. 34967.
April 27, 1942. Suggestion of Error Overruled May 25, 1942.
1. BOUNDARIES.
When a description in deed must depend upon a particular monument as the point of beginning, the location of that monument must be shown with reasonable certainty.
2. BOUNDARIES.
Evidence supported decree dismissing bill to quiet title on ground that complainants failed to locate monument relied upon by them as starting point in their description with reasonable certainty.
APPEAL from chancery court of Yazoo county, HON. M.B. MONTGOMERY, Chancellor.
Howie, Howie McGowan, and Jackson, Young Friend, all of Jackson, for appellants.
The deed had five monuments: The Cessna road; the Liverpool road; the point of intersection of the roads in 1915; an elm tree 16 feet west of the intersection; and a point on the Liverpool road 357 feet west of the elm tree.
The deed also had three distances: (1) 16 feet west of the intersection; (2) a strip of land 38 feet wide; and (3) a strip of land 125 yards long.
With these monuments and distances, we submit that this parcel of land is completely identified; that the same is bound down, circumscribed and thoroughly defined. With these monuments and distances any surveyor or competent person could have gone upon the scene after the deed was executed and immediately located the land.
The test of whether or not a deed is void for uncertainty is whether or not the deed contains any reference, or anything, which points to inquiry, which if pursued and by the aid of parol might result in the proper location of the land.
Jenkins v. Bodley, S. M. 338; Tucker v. Field, 51 Miss. 191; McManus v. Wilson, 138 Miss. 1, 102 So. 543; Herod v. Robinson, 149 Miss. 354, 115 So. 40; Bingaman v. Hyatt, S. M. 437.
The test is whether or not the deed contains a patent ambiguity as distinguished from latent ambiguity.
Bowers v. Andrews, 52 Miss. 596.
A patent ambiguity is something that is patent, or as the words mean, on its face, "impossible."
It appears to us that cases of patent ambiguity, or instances of deeds void on their face, might be divided into two groups: (1) deeds containing descriptions mathematically impossible; and (2) omissions leaving impossible solutions. Mere vagueness is not the test.
See Calvert v. Matthews, 149 Miss. 671, 115 So. 780; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Sack v. Gilmer Dry Goods Co., 149 Miss. 296, 115 So. 339; Selden v. Coffee, 55 Miss. 41; Smith v. Brothers, 86 Miss. 241, 38 So. 353.
It is competent to show by parol not only what was intended but the person who was intended, or whose land was affected. Mere vagueness is not enough to condemn the description of a deed. The court on numerous occasions has held that it is not only the province of the court to locate, where same can be done, but it is enjoined as a particular duty of the court.
Smith v. Brothers, supra; Bowers v. Anderson, supra; Tucker v. Field, supra; Cherry v. Long, 61 N.C. 466.
We have a deed in the case at bar, which land on the face of the deed is very specifically described. It is a small tract of land 38 feet wide and 125 yards in length. This is clearly established. It contains five monuments and three distances, or two dimentional distances and one directional distance, for a starting point. There is no doubt how big it is and no doubt where it started and no doubt where it ended.
Vinson, Elkins, Weems Francis, and Thomas Fletcher, all of Houston, Texas, Fielding L. Wright, of Rolling Fork, Brunini Brunini, of Vicksburg, and Ray, Spivey Cain, of Canton, for appellees.
A valid deed must have a definite and certain description from which the land covered can be clearly identified.
Dunn v. Stratton, 160 Miss. 1, 133 So. 140; Tierney v. Brown, 65 Miss. 563, 5 So. 104; Chinoweth v. Haskell, 7 L.Ed. 614, 6 Peters 328; 16 Am. Jur. 584; 8 R.C.L. 1072.
The deed purports to describe a portion of a larger tract and the part is not so distinguished and described or segregated as that it can be definitely ascertained and identified.
Tierney v. Brown, 65 Miss. 563, 5 So. 104; Rush v. Pearson, 92 Miss. 263, 45 So. 722; Cogburn v. Hunt, 54 Miss. 675; Dingey v. Patton, 60 Miss. 1038; Delk v. Hubbard, 153 Miss. 869, 121 So. 845; Hanks v. Hamman, 288 S.W. 143; 26 C.J.S. 216.
No starting point is therein definitely established with reference to which the courses and distances of the boundaries can be located on the ground with reasonable certainty.
Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Barker v. Southern Railway Co. (N.C.), 34 S.E. 701; LeFranc v. Richmond, 15 F.Cas. 245; Mann v. Taylor (N.C.), 69 Am. Dec. 750; Pry v. Pry, 109 Ill. 466; 18 C.J. 179; 4 Tiffany on Real Property (3 Ed.) 115.
The description in the deeds is also void because the description as a whole is too vague and indefinite to describe with reasonable certainty the property sought to be conveyed.
Haughton v. Sartor, 71 Miss. 357, 15 So. 71; Patterson v. Morgan, 161 Miss. 807, 138 So. 362; Smith v. Brothers, 86 Miss. 241, 38 So. 353; Katz v. Daughtrey (N.C.), 151 S.E. 879; Merritt v. Bunting (Va.), 57 S.E. 567; Hinchey v. Nichols, 72 N.C. 66; Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Barker v. Southern Railway Co. (N.C.), 34 S.E. 701; LeFranc v. Richmond, 15 F.Cas. 245; Mann v. Taylor (N.C.), 69 Am. Dec. 750; Pry v. Pry, 109 Ill. 466; 18 C.J. 179; 4 Tiffany on Real Property (3 Ed.), 115.
Argued orally by M.M. McGowan and Forrest B. Jackson, for appellants, and by Thomas Fletcher, for appellees.
Appellants, as complainants, filed their bill in the chancery court seeking to have their title to a small strip of land, adequately described in the bill, quieted and confirmed. An essential link in appellants' chain of title is a deed made in April, 1915, wherein the description is as follows:
"A parcel or strip of land 125 feet in length and 38 feet in width, and more particularly described as follows: Begin at an Elm tree which is 16 feet west of the intersection of what are known as the C.C. Cessna and Liverpool roads in Section 19 Township, 10 Range 2 West, thence run 125 yards in a westerly direction through the land of grantors situated in said Section 19 and Section 24 Township 10 Range 3 West, into the said Liverpool road."
It is apparent that what was attempted to be described was land within a narrow parallelogram beginning on its east end and running towards the west, but it is at the same time equally apparent that in dealing with this description an immediate difficulty arises in the fact that there is nothing in the description or in any reference which it contains which points out whether the elm tree, given as the point of beginning, was located at the northeast corner of the parallelogram, or at the southeast corner, and, therefore, whether as a legal proposition we are not at once confronted with a patent ambiguity, incurable except by a bill to reform, and there is no such attempt or prayer in this case.
We do not find it necessary to decide the suggested question because of the fact that it is fairly evident from the entire record that the chancellor rested his decision in dismissing the bill upon a finding that appellants had failed to locate the starting point by the quality and character of proof required in such cases.
It has been the rule for adjudication in this state since such cases as Nixon v. Porter, 34 Miss. 697, 69 Am. Dec. 408, that when a description must depend upon a particular monument as the point of beginning, the location of that monument must be shown with reasonable certainty. It is admitted by appellants that the elm tree mentioned in the deed as the point of beginning is not now in existence. And in lieu thereof its former position cannot now be located by resort to a measurement 16 feet west of the intersection of Cessna and Liverpool roads as that intersection existed in 1915. The witnesses for appellants admitted that this intersection has, during the course of the years since 1915, gradually and progressively changed towards the south and none of them could locate with requisite certainty where it was in 1915.
Appellants, therefore, directed their principal proof towards the elm tree, and in the attempt to show where the particular tree meant by the deed was located as it stood in 1915. Whether this proof was sufficient, under the stated rule, was an issue of fact to be decided by the chancellor, not by us on appeal. Appellants recognize this and seek to sustain their appeal upon the argument that the finding of facts by the chancellor upon the aforesaid issue was manifestly against the great weight of the competent evidence. We have carefully examined the transcript of the evidence on this question and we are obliged therefrom to say that we cannot confidently assert that the decree is manifestly against the great weight of the competent evidence. On the contrary, although we are without the benefit of the presence of the witnesses themselves, which doubtless aided the chancellor, we would upon this record probably make the same finding as that by him had we the authority to make an original finding of facts.
Affirmed.