470 SUPREME COURT OF ARKANSAS, [35 Ark Howell vs. Rye . et al. HOWELL VS. RYE et al. 1. EVIDENCE : Oral, admissible to correct date of contract. Parol evidence is admissible to prove that a deed was executed on a different day from its date without any violation of the rule that paroi evidence is Inadmissil; e l to vary or contradict the terms of a written instrument. 2. DEED : Uncertainty in description of land. When a deed does not mention the township and range in which the land is situated, and no boundaries, natural or artificial objects, or other means for identifying the land, are given, the deed, on its face, is bad for uncertainty; and the grantor may make a new deed correcting the mistake and omission, which would be good between them. 3. SAME : Exceptions to, how determined. in considering exceptions to deeds exhibited in ple ' ading, as evidence of title, die court can look only to the face of the deeds themselves. 4.. PLEAD iNG : Complaint in ejectment: Sufficiency, how determined. In considering the suf ficiency of a complaint in ejectment, on demurrer, the court can . look only to its allegations, and not to the deeds exhibited with it. APPEAL from Pope Circuit Court. - Hon.TuomAs \V. POUND, Circuit Judge. Rose, Granger, for appellees.. Q ENGLISH, C. J. On the twenty-seventh of February, 1878, Turner Howell commenced an action of unlawful detainer in the circuit court of Pope county against John C. Rye., 'There were two ° counts in the complaint, the first alleging, in substance, that plaintiff was the owner and entitled to the possession of the following described premises, situated in Pope county, to-wit : The south part of the sOuth half of section 28, in township 9, north range 20 west, containing 150 acres; about 60 acres • of which were inclosed and pre-
35. Ark..] MAY TERM, 1880. 471 Howell vs. Rye et al. pared for cultivation; and that in January, 1877, he leased, by parol, the inclosed land to defendant for that year, and that he unlawfully detained possession thereof after the expiration of his term, etc. The second count alleged, in substance, that plaintiff, being the owner and entitled to immediate possession of the above described . premises, defendant, on the first of January, 1878, obtained peaceable possession thereof, by permissibn of plain-tif f , , to take fire-wood therefrom, and pasture the stalk land, and unlawfully held over after the expiration of his right to such possession, etc. • Under the writ issued upon the filing of the complaint, plaintiff having executed bond as required by the statute, the.sheriff put him in possession of the premises. At. the return term, Marrh, 1878, J.. A. McDowell and W. E. Snood, under the firni name of J. A. McDowell & Co., and G. Drabelle and J; Y. Gardner, under the firm name of Drabelle & Gardner, claiming an interest in the land, were, upon their application, made defendants, and joined with de-, fendant Rye in an answer. The answer, in substance, denied that plaintif f was the owner of the land • and rented it to Rye, and averred that Rye rented the land for the year 1877 of One B. A. How-ell, and that the +land was Sold under special executions against him • in favor of McDowell & Co. and Drabelle & Gardner, on the fourteenth of July of that year, and purchased , by them, and that they obtained certificates of purchase from the officer who made the sale, and afterwards, on the first of February, 1878, renfed the land to defendant Rye; for that year, who went into possession of it as their tenant, etc. The plaintiff demurred to the answer on the ground, in substance, that it denied his title to the land; and • set .up
4. 72 SUPREME COURT OF ARKANSAS, [35 Ark Howell vs. Rye et al. adverse title, which could not be adjudicated in the action of unlawful detainer ; and the court sustained the de, -murrer. Thereupon the parties entered into an agreement of record, in substance as follows: I . . That. the cause be continued until the next term. 2. That defendant Rye be restored to possession of the land as tenant of defendants J. A. McDowell & Co., and Drabelle & Gardner. 3. That defendants. waived all damages they may have sustained in consequence of haing been dispossessed of the land by the sheriff at the instance of plaintif f in the-suit, and that he be released frorn all liability on his , bOnd. 4. That plaintiff, in lieu of his . complaint in unlawful de-tainer file in the clerk's office within twenty days after the adjournment of the court a complaint in ejectment. 5. That accrued costs, and the rents of the land, abide the result of the action in . ejectment. 6. That defendants waive notice of the filing of the , complaint in ejectment, and answer thereto .at the next term. Under this agreement the cause Imas continued; and plaintiff filed, in substitution of the original complaint, a complaint in ejectment, Which, as afterwards amended, made, in substance, the following averments': That plaintiff is seized in fee and entitled to the immediate posession of the following described land, lying in Pope county, 'etc., to-wit, the south part of the south half of section 28 in township 9 north, range 20 west, containing in the aggregate 150 acres. That on the nineteenth day of December, 1874, he bought the above-described land absolutely and unconditionally from B . . . A. Howell and wife Lou. J. Howell, and was put
35 Ark.] MAY. TERM, 1880. 473 Howell vs. Rye et al. :n possession thereof, paying them therefor the sum of ° twenty-five hundred dollars, good and lawful money of the United States, for which they executed to him their deed to 5aid land, conveying to him title in fee simple * under the following description, to-wit : "The following lands lying in the county of Pope and state . of Arlansas, to-wit All Of the south half of section 28 that I now own, containing 150 acres, more or less!' That said B. A. Howell was lawfully seized, held, occupied and possessed of said land, under a deed f rom W. E. Jamison and wife Francis J. Jamison, containing a like description thereof as will more fully appear from a certified cdpy of said deed, herewith filed; marked exhibit . "C." That said deed ( from B. 'A. Howell and wife to plaintiff ) was actually executed to plaintif f on the nineteenth day of December, 1874, but by mistake the date of said deed was erroneously written December 20, 2 1874 ; all of Which will more fully appear from a certified copy of said deed ; also, their supplemental deed to said land executed to plaintif f at his instance and request on the eighteenth day of December, 1877, marked exhibits "A" and "B," herewith filed and hsked to be made part of this complaint.- That on the first day of January, 1878, plaintiff was lawfully seized and r possessed of the above-described land, as owner in fee simple, and being so possessed thereof, afterwards, on the second day of January, 1878, defendant John C. Rye, without the Consent :1141 against the will of the plain-tif , f, unlawfully entered into said premises, and ousted piaintif f of the pOssession thereof, and unlawfully witholds the . same, etc., etc. That defendants J. A. McDowell, W. E. Snood, T. bra= belle and J. Y. Gardner, as plaintif f is informed, claim to owners in fee of said land, and defendant Rye claims to" •
474 SUPREME COURT OF ARKANSAS, [35 Ark Howell vs. Rye et al. hold Under them as their tenant, but plaintiff denies that they have any claim or ownership thereto. Wherefore plaintif f prays judgment for possession of said premises, and for damages, etc., etc. • The deed from Jamison and wife to B. A. ' Howell, made exhibit "C" to the complaint, bears date thirtieth . of January, 1874, was acknowledged on the same day, and filed in the recorder's of fice of Pope county, fourth of November, 1874, and recorded. In ft the land is described thus: "Know all men, etc., that we, William E. Jamison and Frances J. Jamison, his wife, for and — in consideration of the sum .of $2,500, to me in hand paid by B. A. Howell, do hereby grant, bargain and sell, unto said B. A. Howell and to his heirs and assigns forever, fhe following lands, lying in the county of Pope, and state of Arkansas, to-wit : All the south half of section 28 that I now own, except forty feet square on College Hill, covering the graves of J. R. Jami-son and J. H. Jamison, containing 150 acres more or less. Also all of blocks C and D, as shown bY plat of West Dover, as recorded in clerk's of fice in Pope county," etc. Then follow the habendum clause, and relinquishment of dower by the . wife, etc. The deed from B. A. Howell and wife to plaintif , f, made exhibit "A" to-the complaint, follows : "Know all men by these presents, that we, B. A. How-ell and Lou J. Howell his wife, for and in consideration of the sum of two thousand and five hundred dollars, ($2,500,) to me in hand paid by Turner Howell, do hereby grant, bargain and sell, unto the said " Turner How-ell, and unto his heirs and assigns forever, the following lands lying in the county of Pope and state of Arkansas, to wit : All the south hal; of section 28 that I now own, containing 150 acres, more or less ; to have and . to hold,"
. • 35 Ark.] . MAY TERM, 1880. 475 Howell vs. Rye et al. etc. Then follow the usual' habendurn clause, covenant of warranty, and relinquishment of dower by the wife, etc. The deed and acknowledgment are . both dated the twentieth day of December, 1874, and the deed was filed in the recorder's office of Pope county, on the twenty-first of the same December, and recorded. The supplemental deed from B. A. Howell and wife, made exhibit "B" to the complaint, follows "To all whom it may concern : Whereas, on the nineteenth day of December, 1874, was, by mistake in . the drafts-delivered tO the grantee, Turner , Howell, a warranty deed in fee simple to the lands hereinafter mentioned and described, for the sum of $2,500, which sum of money was paid by. said Turner Howell to said B. A. Howell and wife, etc., before the execution and delivery by them, to him, of said warranty deed on the said nineteenth day of December, 1874. And, whereas, the date of the execution _cf the aforesaid deed, on the nineteenth day of December, 1874, was, bv mistake in the drafts, man who drafted the said deed, written the twentieth day of December, 1874, instead of the nineteenth day, the true date of the execution thereof. And, whereas,, said. deed, executed by mistake, as aforesaid, bears an erroneous date in reference to the day of its execution, to-wit : the , twentieth day, when it should be dated and bear date of the nineteenth day of the month and year aforesaid. And, wherea c , it does not appear upon the face of said deed the township and range in which said lands are situated.. And, whereas, the said Turner Howell has . requested the said B. A. Howell and Lou. J. Howell, his wife, to execute to him another deed to said lands, with a correction of the date and the' execution of the said former deed, and more particularly descril:ing said lands than in said former deed: "Now, therefore, kno . w . ye, that we, B. A. Howell , and
476 SUPREME COURT OF. ARKANSAS, [35 Ark Howell vs. Rye et al. Lou. J. Howell, wife of said B. A. Howell, for and in consideration of the sum of $2,500, being the consideration mentioned in a former deed, executed by us to Turner How-ell, on the nineteenth day of December, 1874, but, by mistake, dated the twentieth day of said month and year, to the lands hereinafter mentioned and described, and which consideration money was paid cash in hand to us, by Turner Howell, previous to and before we executed to him said former deed on the said nineteenth day of De-cember, 1874, to which former deed this deed has refer,- cnce and is intended to correct and • reform; and to take effect from the true date thereof, we do hereby grant, bargain and sell unto the said Turner Howell, his heirs and assigns forever the following described' lands, lying in the county of Pope and state of Arkansas, to-Wit : the south, part of the south half of section 28, in township 9 north, range . 20 west, containing, in the aggregate, 150 acres, to have and to hold," etc. Then follow the usual habendum, warranty of title, relinquishment of dower, etc. This deed bears date and was acknowledged, etc., on the eighteenth of December, 1877. The defendants filed an a uswer to the complaint, .ana in their answer made exceptions . to the original and supplemental deeds executed by B. A. Howell and wife to plaintif f , , and exhibited as evidence with the complaint.- The court sustained the exceptions, and thereupOn defendants demurred to the . :omplaint ; the court sustained the demurrer ; the plaintiff rested judgment was rendered for defendants, and plaintiff appealed. I. The exceptions made in the answer of defendants to the ileeds of the plaintiff are as follows : `.Defendants, further answering: except to the deeds re-
35 Ark.] MAY TERM, 1880. , 477 Howell vs. Rye et al. lied upon as evidence, marked exhibits 'A' and 'B,' and attached to the complaint of plaintif f , ; for the following masons, to-wit : "1. Because said deed, exhibit 'A' passes no legal title \ whatever, and evidence which would tend to 'show an equitable title, can not be admitted in ejectment. "2. Because sUch •a deed as this is shown on its face to be, even though acknowledged and recorded, would not even be notice to the world. "3. Because exhibit 'B' shows on its face that it wa's exe-' cuted long after the said B. A. Howell had lost all his .right, title and interest in said lands, by sale under judgment by attachment, in favor of the real defendants herein against him, and that said B. A. Howell had no interest , whatever in said lands, and could convey * none ; and no power save a court of chancery could reform the deed, exhibit 'A,' which is sought to be done by exhibit 'IT,' etc. The twentieth of Deceiriber, 1874, the day on which the first deed from B. A. Howell to 1. Evidence: Parol, ad-plaintiff bears . date, was Sunday, but the corn- missible to correct date plaint alleges that it was, in fact, executed on of written contract. the nineteenth, and this allegation might have been proven on the trial without any violation of the rule that parol evidence is inadmissible 'to contradict or vary the terms of a written instrument. 1 Greenleaf Ev., sec. 285. The lands attempted to be conveyed by the 2. Deed: deed were not otherwise described or identified " Meer-tainty in
fhan as follows : "The following lands lying in description of land. the county of Pope, and state of Arkansas, to-wit : all the south half of section 28 that I now own, containing 150 aéres, more or less." • The township and range 2.re not mentioned, and no boundaries, natural or artificial object, or other means of identifying the lands intended to be conveyed, are given. and it may be conceded that the deed on its face was bad f6r uncertainty under
478 SUPREME CO . URT OF ARKANSAS, [35 Ark Howell vs. Rye et al. our registration law. guardian, v. Fel . lows,. 30 Ark.,
657;—Cooper v.-White, ib.;-:-13;-.Moone,, et al -v; Colledge et al., ib. 640 ; Doe v. Porter, 3 Ark., 18. . But by the supplemental deed of the eighteenth of De-cPm h.r, 18 77, the mistakes in the date of • the first deed was corrected, and omissions in the description of the land supplied. The complaint alleges that .plaintif f ,purchased the land of B. A. Howell, on the nineteenth of December, 1874, paid him therefor $2,500 in cash, and was put in possession of the land. If these allegations be true, a court of equity would have compelled B. A. Howell to make plaintif f a deed properly describing the land, etc. Allen v. McGaughey et al., 31 Ark.,.2.52. In making the supplemental deed to correct ' the mistake and omissions in the first deed, B. A. Howell did just what a court of equity would have compelled him to do on the allegations of the complaint, and as between him and plaintif f the supplemental deed was valid. Willianis et al. v. Mcilroy, 34 Ark., 85. 3. It does not appear upon the face of the sup-Exceptions to, how de- plemental deed that B. A. Howell had been di- termined. vested of his legal title to the land by sale under judgment by attachment before the deed was executed, as stated in defendant's exceptions tb this deed. The deed upon its face was valid, arid competent to be read in evidence on the trial to show title in . plaintif f ; and whether it was valid on its face or not, was the question to be considered bv the court in ruling upon the exceptions taken to it. Jacks v. Chhffin et al., 34 Ark., 534. • It is true that it is at firmatively alleged in the answer of defendants, that McDowell & Co. and Drabelle & Gardner obtained judgments in attachment suits against B. A. How-
33 Ark.] MAY TERM, 1880. 479 Howell vs. Rye et al. ell at the May term of the Pope circuit Court, 1877, and that the land was sold, under special executions issued on the judgments, on the fourteenth of July, 1877, and purchased by the plaintif fs in the 'eXecutions; who received . certificates of pUrchase therefor from the . officer making the sale ; but the defendants would have to prove these allegations on the trial, and, they could not be taken as true by the court, or noticed in considering the exceptions to plaintiff's deed. Whether . these allegations, if proven on the trial, would defeat the plaintiff's supplemental deed, is not a question before us on this appeal. The court erred in sustaining the exceptions to the sup--plemerital deed: II. The complaint on its face contained substantially all the requisite allegations to make a good cause of action in eject-ment. Sec. 2258 Gantt's Digest. The court . in considering the demurrer to the complaint, could only look at its allegations, and see if they made a :good cause • of action, and could not look at the deeds ex- . hibited with the complaint, which were disclosed as the documentary evidence which plairitif f proposed to use on the trial, for the information of defendants. Act of March 5. 1875—Acts of 1873, p. 229, as construed in Jacks v. Chaffin et al... supra. The judgment is reversed , and the cat:Ise remanded for further proceedings. 0.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.