Opinion
No. 33310.
October 3, 1938.
1. DEEDS.
A warranty deed conveying 148 acres in lots 2 and 3 was void for uncertainty in description where letters patent to grantor and the township plat showed that lots 2 and 3 contained 148.74 acres, and the deed did not indicate where the .74 of an acre not conveyed was to be found in lots 2 and 3.
2. LOGS AND LOGGING.
Plaintiffs could not recover value of timber cut by defendant from lands allegedly owned by plaintiffs where the deed upon which plaintiffs' title to the lands rested was void for uncertainty in description.
APPEAL from the circuit court of Wilkinson county; HON. R.E. BENNETT, Judge.
Bramlette Bramlette, of Woodville, for appellant.
As we understand the law, it is not incumbent on appellant to show title in appellant in order to reverse the judgment of the court below since the first obligation and the burden of proof is on appellees to show title in themselves which they have not only failed to do but specifically declined to claim title to the fifty-five acres timbered lands by excluding same from their declaration; however, not only does the record demonstrate that appellees are not vested with title to the fifty-five acres timbered lands and do not claim same but, while no obligation rests on appellant to show title, the record further demonstrates that title thereto is actually vested in appellant, and appellees are without legal title to any part of the land in Lots 2 and 3.
It is a cardinal rule in the construction of deeds that a deed will not be held void for uncertainty of description if by any reasonable construction it can be upheld.
McLendon v. Ravesies, 178 Miss. 428; Swan v. New England Mortgage Securities Co., 75 Miss. 907; 18 C.J. 180, 181; Jenkins v. Bodley, Smedes Marshall's Chancery Reports, page 338; Nixon v. Clevenger, 74 Miss. 67; Enochs v. Miller, 60 Miss. 19; McManus v. Wilson, 138 Miss. 1; Nixon v. Porter, 34 Miss. 697; Gex v. Dill, 86 Miss. 10; Hanna v. Renfro, 32 Miss. 125.
The testimony of the witness, T.B. McCurley, shows conclusively that from the purchase of this land by appellant's remote grantor, Foster Creek Lumber Company, in 1907, down to and including the present time, appellant and its grantors have exercised exclusive, continuous, actual and adverse possession such as to vest title in appellant even had appellant not been vested with record title.
McCaughn v. Young, 85 Miss. 277; Leavenworth v. Reeves, 106 Miss. 722; Jones v. Brandon, 59 Miss. 585; Herod v. Robinson, 149 Miss. 354; Pegram v. Newman, 54 Miss. 612; 8 R.C.L. 1086, sec. 143.
The lower court committed fatal error in admitting into evidence a purported deed from Peter Perkins to Morris H. Rothschild. Appellees' deed from Peter Perkins to Morris H. Rothschild calls for exactly "One Hundred and Forty Eight acres in Lots Two and Three in Section Thirty Six, Township four, Range two West." The patent from the United States to Peter Perkins established Lots 2 and 3 of Section 36, Township 4 North, Range 2 West, as containing exactly one hundred and forty-eight and seventy-four hundredths acres. While the patent calls for one hundred and forty-eight and seventy-four hundredths acres and appellees' deed from Peter Perkins calls for one hundred and forty-eight acres, appellees emphasize the invalidity of the deed by their own admission in their declaration, wherein they expressly and without equivocation say that fifty-five acres timbered land lying in the Northern part of said Lots 2 and 3 is not covered by this deed.
The deed from Peter Perkins to Morris H. Rothschild is invalid for the reason that it would purportedly convey land not belonging to Peter Perkins on January 26, 1912, the date of said deed, title to which land having been vested in another five years before.
In the Rothschild deed is a patent ambiguity utterly incurable by parol evidence or otherwise. There is bare one hundred and forty-eight acres in lots 2 and 3 described, whereas the declaration alleged Lots 2 and 3 contained 149.48 acres and the United States patent revealed 148.74 acres. Either figure taken leaves an excess above 148 acres and there is no human device known whereby the 148 acres can be located in Lots 2 and 3. The description is utterly void and renders the purported deed null and void.
Plenny v. Ferrill, 11 So. 5; Brown v. Guice, 46 Miss. 299; Swayze v. McCrossin, 13 S. M. 317; Yandall v. Pugh, 53 Miss. 225; Dingey v. Paxton, 60 Miss. 1038.
Jones Stockett, of Woodville, for appellees.
The timber was cut and removed from the entire lands and the estimate of all such timber so cut was made. A separate count was made of such timber inside and outside of plats made by appellant and Morgan (appellee's agent), but the witness, on the objection of appellant, was not permitted to recite those findings. It will be noted here and at this time that appellant has never denied the cutting and conversion of any of this timber, and that the positive testimony of its having been cut over the entire area of the two lots is not contradicted by any one.
Since January 23, 1912, there has been of record in Wilkinson County a deed to the ancestor of appellees for both these lots of land, a repudiation of record of the alleged conveyance to Foster Creek Lumber Company upon which appellant relies. Despite this record, the notice of ownership of all these two lots, appellant entered on the land, cuts timber from the entire tract, converts it to its own use and when asked to pay, offers nothing in contradiction or by way of excuse or explanation — it simply rests on the unsupported assertion that many years ago the grantor of appellees had attempted to convey fifty-five acres to some other person, a stranger to the litigation and in no manner connected with appellant.
Appellant, interposing affirmative defense, did not meet, nor pretend to meet and discharge that burden. No title of any kind was attempted to be shown in appellant; timber was cut from all of the land, and not alone from the part claimed by appellant; appellant declined to allow appellees to show the amount of timber cut from the lands claimed by it; appellant defended solely on the ground that an outsider, a stranger to the litigation, might own the disputed area.
Argued orally by D.C. Bramlette, Jr., for appellant, and by A.H. Jones, for appellee.
Appellees, Mrs. Elsas, Bernard Hyman and Arthur Harris, trustees, brought an action at law against the Crosby Lumber Manufacturing Company, appellant, for the value of timber cut from lands of which appellees alleged themselves to be the owners, and recovered judgment.
Appellees' title to the timber and right to recover in this case must rest upon the following deed from Peter Perkins to Morris H. Rothschild and the substantial part of which is as follows:
"In consideration of two hundred forty six and 79/100 dollars, I convey and warrant unto Morris H. Rothschild, the land in Wilkinson county, Mississippi, described as one hundred and forty eight acres in Lots 2 and 3 in Section thirty-six, Township four, Range two west."
"Witness my signature, this the 26th day of January, A.D. 1912." Signed and acknowledged.
The letters patent offered in evidence to Peter Perkins from the government shows that Lots 2 and 3 contain 148.74 acres; likewise, the township plat offered in evidence shows the same acreage. It will be observed that while in Lots 2 and 3 there were 148.74 acres, by the conveyance to Rothschild, the testator of appellees, he acquired only a deed to 148 acres in said lots, thereby leaving .74 of an acre not conveyed; and no description appears by which it can be determined exactly where the 148 acres attempted to be conveyed were located, or where the .74 of an acre is to be found in Lots 2 and 3. Approximately 3/4 of an acre was not conveyed. Lots 2 and 3 comprise the northwest quarter of that section. This 3/4 of an acre might be anywhere within the bounds of Lots 2 and 3 or that quarter section. True, the acreage omitted is small as compared to the entire quarter section, but under all the authorities in this state the deed here involved is void for uncertainty in description.
A case on all fours with the one at bar is Dingey v. Paxton, 60 Miss. 1038 wherein the description held void was "one hundred forty three acres in the northeast quarter of section 24, township 17, range 7 west." It was there held that it was impossible to identify the 143 acres. It is impossible to identify the 148 acres in the Perkins deed set forth above. The description here involved is wholly uncertain, and, as appellees' case rested upon this void deed, their action must fail.
In view of this construction we deem it unnecessary to discuss other serious errors urged by appellant.
Reversed and judgment here for appellant.