Opinion
No. 32625.
March 15, 1937. Suggestion of Error Overruled April 12, 1937.
1. DEEDS.
Deed will not be held void for uncertainty of description, if by any reasonable construction it can be upheld.
2. DEEDS.
Description in deed conveying lot held not void for uncertainty, where yards and directions were given for each of three sides and description returned to point of beginning.
3. APPEAL AND ERROR.
Facts which did not appear in record of evidence but were only shown by briefs of appellant held not before Supreme Court, which is a court of appeals only, having no authority to act on any evidence which was not before trial court.
APPEAL from chancery court of Jasper county. HON. A.B. AMIS, SR., Chancellor.
R.L. McLendon, of Vossburg, for appellant.
Appellee, D.H. Ravesies, in his several bills of complaint, as amended, and in his original, alleges in his bills that the acre of land he claims to own is described, "Beginning 110 yards east and 294 yards south of the northwest corner of the SE 1/4 of NE 1/4, Sec. 23, Tp. 1, Range 13 east, thence running 70 yards along the Vossburg and Shubuta public road, thence south 70 yards, thence west 70 yards, thence north along the Vossburg and Stafford Springs road to place of beginning." Then in his testimony on the witness stand he testified that the acre of land he claimed was described, "Beginning 110 yards south of the northwest corner" and that the same eleven thousand dollars he testified he borrowed on his several deeds of trust he gave to various persons on his said land claim and that not a dollar of which he ever paid, as he swore.
Should a final decree have been rendered against the appellant on said state of facts, and on said evidence, and on said "floating" land description? Is not that decree null and void?
The Honorable Chancery Court did not know, on July 15, 1936, the day appellant was ordered to make instant answer to the amendment to the amended bill of the complainant, D.H. Ravesies, that a five-years' time line-up had been framed against this appellant to take away his home. Had the Honorable Chancellor known that he would have at least allowed the appellant time in which to have made defense to the amendment to the amended bill of the said complainant wherein, and whereby, the man, H.E. McGowan (a deeply interested party in the outcome of the said cause against appellant) substituted his voice in oral words for the supplying of "lost" deed that never did exist. In order to aid the man, E. Martin, Sr., and Martin's kindred, and Martin's frame-up the said H.E. McGowan exercised a swift voice in substituting his voice for a deed the statute of frauds intended should be of writing, and whose said "lost" deed in attempting to make out a perfect title should have been in accord with section 551, chapter 19, Mississippi Code of 1906, and of section 501 of the Mississippi Code of 1892, and in accord with the subsequent Mississippi Code of Laws on said subject.
Also, the appellee, in not filing the original of the deeds he seeks to recover under, or true copies thereof, or incorporating them in his said bill of complaint, as required by section 735 (Hemingway) Code of 1927, and Griffith's Miss. Chan. Practice, secs. 380, 385, in Thomas v. Rosenbaum Sons, 153 Miss. 314, 120 So. 732, which able authorities meant to show that exhibits of such writings should be made if they are to be testified about. No such exhibits were filed in said cause.
W.E. Morse and C.M. Gordon, both of Jackson, for appellant.
The lower court erred in failing to sustain appellant's demurrer to the description of the land claimed by appellee in the First District of Jasper County, Mississippi, and such description being as follows: "Beginning 110 yards East and 294 yards South of the Northwest corner of the Southeast Quarter (SE 1/4) of the Northeast Quarter (NE 1/4) of Section 23, Township 1, Range 13 East, running thence 70 yards along the Vossburg and Shubuta public road, thence South 70 yards, thence west 70 yards, thence North along the Vossburg and Stafford Springs road 70 yards to place of beginning."
It is impossible to locate any land from such a description because the description is vague, indefinite and uncertain and no point of beginning can be ascertained. The call of a deed in direction is binding. In this deed two points are set as the point of beginning. The first point, "beginning 110 yards east" would set the point of beginning 110 yards east of the Northwest corner of the Southeast Quarter of the Northeast Quarter of Section 23, Township 1, Range 13 East, whereas the second point 294 yards South of the aforementioned corner would leave a question of over three hundred yards as to the location of the point of beginning. It is not possible for one acre of land, 70 yards by 70 yards to begin at two points over three hundred yards distant from each other. If it begins at a point 110 yards east of the Northwest corner, well and good, and likewise if it begins at a point 294 yards south of the Northwest corner, etc., but it certainly cannot begin at both places. Either it begins at one or the other and as it attempts to begin at both, the description in the chain of deeds is void and transfers no property whatsoever.
Calvert v. Mathers, 149 Miss. 671, 115 So. 780; Mann v. Taylor, 69 Am. Dec. 750.
This cause should be reversed because the description contained in the original deed from T.C. Donald and wife, J.M. Donald, to W.E. Chatham, and the chain of deeds purporting to convey land by the same description, down to and including the deed to D.H. Ravesies, conveyed no property, because the description contained therein was vague, uncertain and indefinite as no point of beginning could be ascertained from the description.
Alex McFarland, of Bay Springs, and Wm. Edwards, of Shubuta, for appellee.
It is a well established rule that when an instrument has been lost, and cannot be produced, that secondary evidence is admissible to prove that said deed was executed and delivered.
We deraigned the title from the Government and T.C. Donald, the common source, to D.H. Ravesies, all that is required by section 405 of the Mississippi Code of 1930.
It is contended by appellant that the property here in controversy, was not properly and accurately described. It is appellee's contention that it is evident from the proof that the land involved in this suit is definitely, amply and correctly described, and from such description, as the record discloses, may be located by a surveyor.
Beasley v. Beasley, 171 So. 280.
It is our contention that there was no other conclusion for the court to reach, except that Donald had executed deed to Mr. W.E. Chatham, and since we deraign our title through Donald, McGowan, Howell and Ravesies, we think the court was eminently correct in the conclusion it reached, in rendering a decree in favor of the complainant.
Argued orally by C.M. Gordon, for appellant.
Appellee filed his bill against appellant to remove as a cloud upon appellee's title a claim held by appellant to the following described lot of land:
"Beginning 110 yards East and 294 yards South of the Northwest corner of the Southeast quarter (S.E. 1/4) of the Northeast quarter (N.E. 1/4) of Section 23, Township 1, Range 13 East, running thence 70 yards along the Vossburg and Shubuta public road, thence South 70 yards, thence West 70 yards, thence North along the Vossburg and Stafford Springs road 70 yards to place of beginning."
The point principally relied upon, so far as the actual record before us is concerned, is that the above description is void for uncertainty, and the cases, Calvert v. Mathers, 149 Miss. 671, 115 So. 780, and Mann v. Taylor, 49 N.C. 272, 69 Am. Dec. 750, are cited in support of the stated contention. Neither of those cases is in point as an examination of the facts in each will disclose; and we are of the opinion that the quoted description is good and sufficient. 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. 18 C.J., p. 181. A reasonable construction of the quoted description is that the surveyor shall first run 110 yards east of and from the northwest corner of the SE 1/4 of NE 1/4, said section, thence south 294 yards as a point of beginning of the boundaries of the lot, and that he must thence run east 70 yards along the described road, for the reason that the yards and directions are given for each of the other three sides and the description returns to the point of beginning.
The other points involved in the record are either of those involving the exercise of the chancellor's discretion or of his findings upon the facts. He is not shown to have abused his discretion; nor is it made to appear that his findings were manifestly contrary to the evidence as disclosed by the court reporter's transcript.
What the hope of reversal seems mainly to rest upon is an elaborate recital of many additional facts which do not appear in the record of the evidence at all, but are shown in no other way than by the briefs of appellant. Had those additional facts been proved before the chancellor, his decree might, and probably would, have been different. But they were not placed before him by proof, and hence are not before us in any such way that we may act upon them. See Alexander v. Hancock, 174 Miss. 482, 498, 164 So. 772, 165 So. 126. The reason for this rule is, fundamentally, that this court is a court of appeals only, having no other jurisdiction, so that upon the merits of causes we have no authority to act upon any evidence whatever which was not introduced and submitted to the judgment of the trial court; and the only means which the law allows to us to know what evidence was before the trial court is by the reporter's transcript or by a bill of exceptions.
Affirmed.