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[Gaston et al. v. Weir.]
2. Specific objection to evidence.-An objection to the admission of evidence on a single specified ground, is a waiver of all other grounds of objection.
3. Conveyance by husband to wife.-A conveyance of land by the husband, to the wife directly, does not devest the legal title out of him, nor prevent him from afterwards maintaining an action in his own name to recover the possession.
4. Execution of conveyance; who are grantors.-A conveyance which purports to be executed by the wife only as party of the first part, but which is also signed by the husband, the names of both being mentioned as grantors in the certificate of probate, does not devest any legal title out of the husband.
5. Description of lands in conveyance.-A conveyance of "nine and three-quarter acres lying in the north half of the north-west quarter of section one, ," without other identifying and descriptive words, is void for uncertainty.
6. Parol evidence in aid of deed.-Parol evidence of attendant explanatory facts is frequently admitted, in aid of an imperfect description of lands in a conveyance; but such evidence can not be received to show that the land sued for " was the land intended to be conveyed."
APPEAL from Wilcox Circuit Court.
All facts necessary to show what was decided in this case are set out in the opinion, except the certificates to two deeds, which are here given. The bill of exceptions recites, that the execution of the deed from Spiva to Ballard was proved. The certificate of the deed from Ballard to Oxford was as follows:
"State of Alabama, I, George M. Hamner, an acting County of Wilcox, justice of the peace in and for said county, hereby certify that R. J. Ballard and Mary A. Ballard, whose names are signed to the foregoing conveyance and who are known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, they executed the same on the day the same bears date. Given under my hand this the 25th February, A. D. 1860. (Signed) George M. Hamner, Justice of the Peace."
The certificate of the deed from Oxford to plaintiff Weir was as follows:
"State of Alabama,, I, D. J. Fraser, notary public in County of Wilcox. ( and for said county, hereby certify that Martha C. Oxford and A. B. Oxford, whose names are signed to the foregoing and who are known to me, acknowledged before me on this day that, being informed of the contents of the conveyance, they executed the same voluntarily on the day the same bears date. Given under my hand this nineteenth day of December, 1870. (Signed) D. J. Fraser, Notary Public and ex-officio J. P., Wilcox county, Alabama.”
[Gaston et al. v. Weir.]
The bill of exceptions recites, that defendants moved to exclude these deeds as evidence, because said 93 acres (the land in controversy) is not sufficiently described in either of said deeds, and because the land described in each of said deeds does not embrace the 9 acres of land in dispute."
JNO. Y. KILPATRICK, for appellants.
A. D. PITTS, contra.
STONE, C. J.-The present suit, as narrowed down by the pleadings, is a statutory real action for the recovery of nine and three-quarter acres of land. It is described as lying and being in the south-east corner of the north-west quarter of the north-west quarter of section one (1), township fourteen (14), range six (6), Cahaba land district. Such is the description in the pleadings. Each party claims to be a derivative purchaser from Spiva as a common source.
Plaintiff's chain of title is as follows: Spiva conveyed to Ballard in 1859; Ballard to Oxford in 1860, and Oxford to plaintiff Weir in 1870. The description in each of these conveyances is substantially the same. Its language is, "forty-seven and a fourth acres of the west part of the north half of the north-west fourth of section one." It is objected for appellant, defendant below, that this description does not embrace the lands sued for. We can not assent to this. The north half of the north-west quarter-eighty acres necessarily includes the north-west quarter, forty acres. Fortyseven acres of the west part of north half, must be that much taken off the west end of the eighty acres and unexplained must be marked off as a parallelogram.-Wilkinson v. Roper, 74 Ala. 140. The deeds not only convey all of the north-west quarter (N. W. 4) of north-west quarter (N. W. 1), but prima facie, they convey seven acres off the west side or part of the north-east quarter (N. E. 1) of the north-west quarter (N. W. 1). Each of the deeds embraces the land
After the three deeds were put in evidence, and after the defendant had introduced his testimony, he moved to exclude the said three deeds constituting plaintiff's chain of title, "because said 93 acres of land is not sufficiently described in either of said deeds, and because the land described in each of said deeds does not embrace the 93 acres of land in dispute." This was the sole ground stated for the exclusion. We have
[Gaston et al. v. Weir.]
shown this ground is untenable, and the Circuit Court did not err in overruling the motion.
It is urged before us, that the deeds were inadmissible in evidence, on account of defects in the certificates, and on some other grounds. The exclusion having been moved for on a single specific ground, this was a waiver of all others, and we can not consider them.-Jaques v. Horton, 76 Ala. 238; 3 Brick. Dig. 444, § 574; Floyd v. State, 82 Ala. 16. The plaintiff made a prima facie case for recovery.
The defense is placed on two grounds: First, that Weir, the plaintiff, had devested himself of all title, and therefore could not maintain the suit. In January, 1873, Hugh G. Weir attempted to convey the land directly to his wife, Sarah G. Weir, and executed a deed to her for that purpose. had no effect or operation as a conveyance of the legal title, but left it in Hugh G. Weir, the husband.-McMillan v. Peacock, 57 Ala. 127; Meyer v. Sulzbacher, 75 Ala. 423; Powe v. McLeod, 76 Ala. 418.
Second: Another attempt was made to convey the title in October, 1882. The attempted conveyance in this instance was signed by Sallie G. Weir, the wife, and Hugh G. Weir, the husband, M. C. Weir being named as grantee. This deed is formal in all respects, except that Hugh G. Weir is not named in the body of the instrument as a grantor. This paper is ineffectual to devest title out of H. G. Weir.-Harrison v. Simons, 55 Ala. 510; Hammond v. Thompson, 56 Ala. 589; Blythe v. Dargin, 68 Ala. 370; Madden v. Floyd, 69 Ala. 221.
The defense, in its second form, attempted to trace title to Gaston, the defendant, from Spiva, the common source of title. The conveyance from Spiva is dated in December, 1859, and there were regular sub-conveyances down to Gaston. The description, under which it is claimed the land in controversy was conveyed, is in substance the same in each of the deeds constituting this chain. Its language is, "nine and three quarters of an acre lying in the north half of the north-west quarter of section one (1), township fourteen, range six, in Wilcox county, Ala." These deeds, on the objection of the plaintiff, were not allowed to be put in evidence. They were then offered in connection with oral proof, "that the 93 acres of land in dispute was the land which it was intended to convey in said first deed The court sustained the plaintiff's objection, and refused to permit defend
[Lyons v. Hamner.]
ant to show by parol that the land in dispute was the land intended to be conveyed by said first deed."
There can be no question that the deeds, as offered, unaided by other identifying testimony, are void on their faces, on account of the uncertainty of the description of the land intended to be conveyed.-Pollard v. Maddox, 28 Ala. 321; Wilkinson v. Roper, 74 Ala. 140.
An imperfect description of the subject of the conveyance may frequently be aided and made certain, by oral proof of attendant, explanatory facts; but proof of mere intention is always inadmissible.--Hughes v. Wilkinson, 35 Ala. 453; Chambers v. Ringstaff, 69 Ala. 140; Meyer v. Mitchell, 75 Ala. 475; Driggers v. Cassady, 71 Ala. 529; Clements v. Pearce, 63 Ala 284.
Lyons v. Hamner.
Statutory Action of Ejectment.
1. Sale of decedent's lands for equitable division; jurisdiction of court; omission to state names of heirs.-On an application by an administrator for an order to sell lands for distribution, or equitable division, the jurisdiction of the court attaches on the filing of the petition alleging that the lands can not be equitably divided without a sale; and the proceedings being in rem as settled by numerous decisions of this court, the omission to make one of the heirs a party, or to state his name with the others, does not render the sale void, nor can he impeach it collaterally.
2. Same; remedy of heir not made party.-If one of the heirs is not named in the petition, or is not made a party to the proceedings, he may apply to be made a party, in order that he may sue out an appeal; and having this remedy, it can not be said that he is deprived of his property without due process of law.
APPEAL from Chambers Circuit Court.
Tried before Hon. JOHN MOORE.
E. G. RICHARDS, for appellant.
J. R. DOWDELL, contra.
SOMERVILLE, J.-The plaintiff, as one of the admitted heirs of Harrison Austin, deceased, shows herself to be en
[Lyons v. Hamner.]
titled, prima facie, to a one-seventh undivided interest in the lands sued for in this action, which is one of ejectment under the statute.
The defendant sets up a title acquired by him under a sale made in November, 1885, by one Moore, as administrator of Austin's estate, on application to sell the lands for division or distribution among the heirs of the estate. The petition was in every respect regular, and in due form, except that it failed to designate the plaintiff among those named as heirs of the decedent. It is contended by appel
lant's counsel, that, in as much as she was not named in the proceedings in the probate court, as a party, or distributee, she can not be concluded by the sale made under that order of that court.
The precise point has many times been raised before this court, and has been adjudged against the view contended for by the appellant's counsel.
In Duval's Heirs v. McLoskey, 1 Ala. 708, decided in 1840, the administrator of Duval had filed his petition, under the act of 1822, praying the county court to sell the lands in controversy for the payment of debts. The petition, under which the sale took place, properly described the lands, and averred the jurisdictional grounds of sale, as required by the statute, but it failed to conform to the statute in defectively omitting to mention the names of any of the heirs. The proceeding was held to be one "in rem, against the estate of the intestate, and not in personam," and the omission of the names of the heirs was held to be an irregularity which would authorize a reversal on a direct appeal, but one that did not affect the jurisdiction of the court to make the sale, and could not be taken advantage of collaterally in an action of ejectment by the heirs for the land. The conclusion reached was based on the case of Wyman v. Campbell, 6 Port. 219, where it was decided, in 1838, and again reiterated in 1840, in Lightfoot v. Lewis, 1 Ala. 475, and other cases, that proceedings in the Orphan's Court to sell realty were "in rem, against the estate of the intestate, and not in personam," and that plenary jurisdiction was vested in the court, over the thing in the nature of an admiralty proceeding—although the owner, or party in interest was not notified of the pendency of the proceeding; and that jurisdiction attached quoad the thing, when the petition was regularly filed by a proper party, and was recognized by the action of the court, without notice to parties concerned; and that,