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sencies of the case, or to afford the redress only that, if the appellee has a special eqto which the injured party is entitled.” 2 uity, his remedy is in a court of equity. Spelling, Extra. Rem. pp. 1404, 1405, § 1725. The judgment in this case is reversed; and

In a case wherein it was sought to pro- a judgment will be here rendered, discharghibit the circuit judge from proceeding in a ing the rule nisi granted by the judge of mandamus case against a probate judge, this the circuit court. court said: "The circuit court has original Reversed and rendered. jurisdiction of the remedy by mandamus against inferior officers.

* Invested, DOWDELL, C. J., and MCCLELLAN and as it is, with this general jurisdiction to MAYFIELD, JJ., concur. hear and finally determine the application in question, and as we are not able to affirm, from anything brought to our view by the record, that it has, or is about to abuse, in KELTON et al. v. SIBLEY-MENGE BRICK

& COAL CO. any wise, the jurisdiction so conferred, we must leave it to the exercise of its jurisdic-(Supreme Court of Alabama. Nov. 29, 1911.) tion to the final determination of the case,

Appeal from Circuit Court, Blount County; from which final determination any one feel

E. C. Crow, Judge.

Proceedings by the Sibley-Menge Brick & ing aggrieved thereby may pursue such re Coal Company against John F. Kelton

and visory remedies as the law may provide. others. Judgment for plaintiff, and defendants We will not inquire, on petition for prohibi- appeal. Reversed and rendered. tion, into the merits of the controversy be

A. Leo Oberdorfer, for appellants. A. Latfore the circuit court in the mandamus pro

ady, for appellee. ceeding further than to see that the court PER CURIAM. Reversed and rendered on is proceeding within, and is not, in any way, the authority of Kelton, Judge, v. Zanie Tavel abusing, the exercise of its jurisdiction.” Ex (November term, 1910) 56 South. 1021. parte Due, 116 Ala. 491, 493, 23 South. 2. Without further multiplying authorities,

(129 La. 849) we hold that the probate court has jurisdic

No. 18,704. tion of condemnation proceedings; that a

BENDER V. CHEW. company regularly organized as a railroad company, having the power to condemn the (Supreme Court of Louisiana. Dec. 11, 1911. curtilage of a dwelling house, having pro

Rehearing Denied Jan. 2, 1912.) ceeded regularly in said court, it was pro

(Syllabus by the Court.) ceeding in the regular course of its juris- 1. VENDOR AND PURCHASER (8239*)-BONA diction, and the circuit judge should not FIDE PURCHASERS — NOTICE - DESCRIPTION have issued the writ of prohibition.


Where a vendor has acquired 34084/100 If there were equitable circumstances, such

acres of land by a patent, and subsequently as that the organization of the railroad com- makes a deed of sale, describing only a part pany was a fraudulent attempt, under the of the land by metes and bounds, and adding, forms of law, to appropriate the dwelling "containing three hundred forty and 84/100

acres," this general description of the number house of the petitioner to a really private of acres will not avail to defeat the title of use, that is a matter more appropriate to a another vendee, who acquired, in good faith, proceeding in equity, and not to the common from the same vendor by a title specifically delaw writ of prohibition.

scribing 40 acres, the description of which had

not been included in the other deed. The case of Birmingham Railway & Elec

[Ed. Note. For other cases, see Vendor and tric Co. v. Birmingham Traction Co., 121 Ala. Purchaser, Dec. Dig. $ 239.*] 475, 478, 25 South. 777, 779, is entirely in 2. BOUNDARIES (3*) - VENDOR AND PUBaccordance with the principles above an CHASEB_(§ 239*)_DESCRIPTION OF BOUNDnounced. The gravamen of that case is that

ARIES-PURCHASERS IN GOOD FAITH, a court of equity, in injunction proceedings, the number of acres is considered the weakest

Identifying and describing land by giving will not determine the question of the ju- method of identification. It does not put prorisdiction; but, if said probate court is ex- spective purchasers on notice by an examinaceeding its jurisdiction, the remedy is by tion of records, and the ownership of land so

described can be ascertained only by a survey writ of probibition, and the court of equity -a means beyond the recorded title. The title will not “restrain a party to a cause in an- of one acquiring in good faith, and after a other jurisdiction, at the instance of the proper examination of the recorded titles, opposing party, from having the court to pro- title was not such as to put third persons on

should not be set aside in favor of one whose ceed to a final adjudication in the absence of notice of an outstanding title. some special equity, not cognizable by the [Ed. Note.-For other cases, see Boundaries, court trying the cause." (Italics ours.) Cent. Dig. $$ 3–41; Dec. Dig. $ 3;* Vendor

Of course we do not decide whether there and Purchaser, Dec. Dig. 8 239.*] is a “special equity" in this case, which 3. DEEDS ($ 114* )-CONSTRUCTION-DESCRIPwould warrant a court of equity to inter


A specific or particular description in a fere, as that question is not before us, but deed is not controlled by a general description,


stating that the land specifically described is | N. Carter at tax sale, and from Leon N. the same land as was acquired by a patent to Carter all, except the land in controversy, the vendor, as the latter description is not sufficient to put third persons on notice of just passed to Clark and Boyce in 1887. what land has been conveyed.

From Clark and Boyce, it passed to Gus [Ed. Note.-For other cases, see Deeds, Dec. Bender (now dead), and from his succession Dig. $ 114.*]

to Mrs. Sophia Bender, his widow, and their 4. DEEDS (8 111*) - CONSTRUCTION — INTEN- children. TION OF PARTIES.

On the 20th day of April, 1887, Gus BenIn construing deeds, the rule is that the der bought from Clark and Boyce under the interpretation which seems best to accord with the intention of the parties should be adopted. following description: The intent is to be gathered from the whole deed, considering both particular and general fourteen; and south half of north half, and

"All of section thirteen; east half of section descriptions.

west half of southeast quarter; and east half (Ed. Note.-For other cases, Deeds, of southwest quarter of section twenty-five, Cent. Dig. $$ 309–315; Dec. Dig. § 111.*]

township twenty-one north, range sixteen west, 5. DEEDS (8 114*)-CONSTRUCTION-DESCRIP- containing thirteen-hundred-twenty and 84/100 TION OF PROPERTY.

acres, being the same land patented to John T. A particular description in a deed is not Roots on the twenty-first day of June, 1884, enlarged by language showing that the vendor by the state of Louisiana; by him, the said intended to convey the same and identical real John T. Roots, sold and conveyed to us by his estate conveyed by a former deed, to which patent, dated Jan. 18, 1881." reference is made. The second deed may convey the same land as described in the former The land in controversy, to wit, the N. E. deed, without conveying all of it, and the refer- | 14 of the S. E. 14, section 25, township 21 N., ence may be merely for greater identification of the land conveyed.

range 16 W., containing 40 acres, is not de{Ed. Note.-For other cases, see Deeds, Dec. scribed in the foregoing. Dig. $ 114.*]

It is described in former acts as above, and 6. REFORMATION OF INSTRUMENTS ($ 29*), the description also includes the land in con


In the deeds to and including that to BenCourts do not favor actions for remodel. ing deeds to better express the intent of the der, the land was referred to as measuring parties to the deed, when the rights of inno- |1,32084/100 acres. cent third persons have intervened.

In all the deeds, the land was referred to (Ed. Note.-For other cases, see Reformation as containing that number of acres. of Instruments, Cent. Dig. 8$ 112, 113; Dec.

The defendant and his authors acquired Dig. § 29.*]

the land from Clark and Boyce. 7. VENDOR AND PURCHASER (8233*)-BONA FIDE PURCHASERS-NOTICE.

In some instances, the consideration paid Registry laws are in the public interest, was one dollar. requiring stability of titles; and where no bad The question whether Gus Bender acquired faith is shown the title of one who has ac

the property from Clark and Boyce on April quired on the faith of properly recorded titles will not be disturbed in the interest of one 20, 1887, was decided adversely to plaintiffs, who, if he has title to the property in contro- who, as before stated, are the wife and heirs versy, has failed to have it properly recorded. of Bender.

[Ed. Note.-For other cases, see Vendor and The deed from John T. Roots, before men. Purchaser, Cent. Dig. $8 563–566; Dec. Dig. $ tioned, to Clark and Boyce was filed in the 233.*)

clerk's office of Caddo parish on April 21, Appeal from First Judicial District Court, 1887. Parish of Caddo; Thomas F. Bell, Judge. The redemption from Leon N. Carter, ad.

Action by Mrs. Sophia Bender against w. judicatee at tax sale, to Clark and Boyce D. Chew. From a judgment for defendant, was filed the same day. plaintiff appeals. Affirmed.

The deed to Gus Bender was filed April 20,

1887, one day prior. Alexander & Wilkinson, for appellant.

Defendant acquired the property from Thigpen & Herold and E. W. Sutherlin, for Clark and the heirs of Boyce. appellee.

The year after Bender acquired the proper.

ty, it was assessed under the description of BREAUX, C. J. This was an action by the N. 12 of the S. E. 14 of section 25, samo plaintiff against defendant to recover 40 township and range as above mentioned. acres of land, to wit, the N. E. 14 of the S. It was assessed together with the other E. 14 of section 25, township 12, range 16, property mentioned. in the Caddo oil fields.

The evidence shows that it was not assessThis tract and adjacent lands became the ed for that year in the name of Clark and property of John T. Roots, who obtained a Boyce. patent from the state, in the year 1884, for Bender, years ago, not long after his pur1,32084/100 acres, including the land in ques-chase, built a fence around the whole tract, tion.

except the 40 acres. Roots not having paid his taxes, the prop In the year 1898, he sold, by particular erty was advertised and adjudicated to Leon | description, all the lands above mentioned

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which he had acquired with other lands to conveyed. It is not controlling in presence W. K. Henderson Lumber Company.

of the following in the deed: No mention whatever was made of the 40

“Being the same land patented to John T. acres of land in question.

Roots on the twenty-first day of April, 1884, by Mrs. Bender, one of the plaintiffs, testified

of Louisiana, and by him, the said that she knew nothing of this land, and add- John T. Roots, sold and conveyed to us by his

deed of Jan. 18, 1886." ed that, in a general way, she knew that her husband had land.

This description was not sufficient to place She evidently knew nothing of these 40 | innocent third persons upon inquiry; it beacres until a short time before this suit was ing a general description, which does not conbrought.

trol the particular description in the deeds The defendant, who became the owner by under which defendant and his immediate mesne conveyance, is a third person.

predecessors in title hold. The mesne purchasers were A. P. Flournoy Bender or his widow never thought of and D. T. Land, who do not appear to have paying taxes on these lands. had any information about this 40-acre tract,

He never claimed, and his wife, after his sold to the former by Clark and Boyce sep- death, never heard that she and her children arate and apart from the other lands which

were the owners. they had owned.

If she owned at all, it was to her an un. Plaintiff's contention is that, while the 40 known title. acres in question are not described by gov The claim made by her to this land is ernment descriptions in the conveyance to evidently an afterthought. Gus Bender, they are otherwise sufficiently That would not amount to anything, if it described and identified by acreage and by were not that the ambiguousness of the dereference to the title under which the ven- scription shows that from the first there was dors hold.

no thought on the part of Bender, buyer, and On the other hand, defendant contends afterward of Bender, the vendor of the propthat plaintiff's deed, as it does not call for erty, to claim it as his own. all of the land, does not control the specific It is surely extraordinary that one should description under which defendant and his sell a large body of land and reserve 40 acres predecessors in title acquired; that it did not from the deed, without in the course of time convey a notice to purchasers of the sale of any one bearing anything in connection with the land as it would have conveyed, had it the reservation made from the area sold. been specifically described in the deed.

Taking the deed as a whole, the descripFirst as to identification of land by acre- i tion does not suggest an oversight. age:

[4] That construction should control which [1-3] Such method of identification is con- appears most in accordance with the intensidered the weakest; it yields to every oth- tion of the parties. Driscoll v. Green, 59 er method. The measurement of lines and N. H. 101, referred to in Century Digest, boundaries, natural or artificial, and other vol. 16, p. 393 (W). similar methods, have the preference over (5) It is, besides, a rule of interpretation the mere area of the land. It is not suscep- that a particular description in a deed, refertible of determination, save by a survey. ring to a former deed, even though the lanwhile courses and distances are generally guage is that the grantor intended to coneasily identified.

vey the same and indentical real estate conIf it was not the intention to include this veyed by the former deed, is not necessarily small body of land with the other lands sold, enlarged. The whole intent is to be taken the area cannot be held controlling.

from the whole description, particular as Innocent third purchasers cannot be held well as general. Brunswick Savings Inst. v. to the necessity of ascertaining whether or Crossman, 76 Me. 577, cited from Century not the land remaining to their vendors is Digest, vol. 16, before cited. equal in area to the body of land which they The general description by reference to a purchased.

patent and a former deed is not suggestive There is no question but that originally of intention to buy other lands; it is more the patent was issued by the government of suggestive of the intention of obtaining full the quantity of acres before mentioned. title to land particularly described.

That fact alone cannot prejudice the rights No meution is made of all the land, only of purchasers, who are not in the least in the same land, which does not necessarily formed about the whole tract containing the include other lands than those described. number of acres before mentioned.

Had the word "all" been used, that would The next proposition of the plaintiff is have made the deed quite unambiguous and that the land is identified in the different plain. deeds under which plaintiff holds by refer It has been decided that a clause in a deed ence in these deeds to the title under which at the end of a particular description of the the vendors held it.

land by metes and bounds, meaning and inThat would be true only if these deeds tending to convey the premises, is merely a contained the usual description of property help to the title, and does not enlarge the

grant. Brown v. Heard, 85 Me. 294, 27 Atl. Registry laws are enacted in public inter182.

est, where the issue is, as just mentioned, A description by metes and bounds, as in held controlling. McDuffie v. Walker, 125 the sale referred to in the last-cited case, is | La. 152, 51 South. 100; Baum v. Smith, 127 not more expressive or controlling than the La. 1090, 54 South. 399; John T. Moore v. subdivisions of the United States survey. Railway Co., 126 La. 840, 53 South. 22.

A rule governing in the one instance may As between vendor and vendee in this inwell govern in another.

stance, no fact was of record requiring inIf the former (“metes" and "bounds") gov- quiry, or suggesting the least necessity of erns as a particular description, so should an inquiry, to the end of ascertaining that the United States surveys, where it is not under a vague description the land sold was evidently the intention that other subdivi- | included in the deed of sale. sions were to be included because of a ref The law and the evidence being in favor erence to deeds, other than those immediate- of defendant (appellee), the judgment appeal. ly preceding the last, under which the last ed from is affirmed. vendee claims.

[6] Reforming a deed which does not set LAND, J., recused himself. out the intention of parties :

The decisions of this court are not favorable to the remodeling of deeds in which

(129 La. 857) third persons, as in this instance, have an

No. 18,621. interest as owners. There is a long line of BAUTOVICH V. GREAT SOUTHERN LUMpertinent decisions on the subject, the read

BER CO. ing of which will give rise to the conclusion (Supreme Court of Louisiana. Nov. 27, 1911. that an action, such as this, cannot, as a

Rehearing Denied Jan. 2, 1912.) general proposition, be maintained against a stranger to the deed, who becomes the owner.

(Syllabus by the Court.) The following decisions present the sub-1. SALES ($ 275*)–CONTRACT-WARRANTY OF ject from different viewpoints, leading to the

QUANTITY. conclusion that, in all fairness, one should coal manufactured at defendant's plant, within

An agreement to sell and deliver all charnot be put on a voyage of discovery to de- a certain time, “estimated at two or more cars termine whether or not all the property he per week," does not imply a warranty of quanbuys is properly included in the deed which tity by defendant, but only an estimate of the the one who proposes to become a vendor faith is all that is required of the party mak

probable amount, in reference to which good holds.

ing it. We insert the whole list for any reference [Ed. Note.-For other cases, see Sales, Cent. hereafter, in case of a similar issue present. Dig. 88 744, 748; Dec. Dig. $ 275.*] ing itself.

2. Sales (8 411*)-BREACH OF CONTRACT-PEThe correction and remodeling were made,


Where, in a suit for damages on such a inter alia, in these decisions : Sentell v. contract, the petition merely alleges a breach Randolph, 52 La. Ann. 52, 26 South. 797; by nondelivery of the full estimated amount, Jones v. Jones, 51 Là. Ann. 645, 25 South. held, that the petition discloses no cause of ac

tion. 368; Baum v. Smith, 127 La. 1089, 54 South. 399; Washington v. Filer, 127 La. 862, 54 Dig. $$ 1161-1164; Dec. Dig. $ 411.*]

[Ed. Note.-For other cases, see Sales, Cent. South. 128; Duson v. Roos, 123 La. 835, 49 South. 590, 131 Am. St. Rep. 375; Sicard v.

(Additional. Syllabus by Editorial Staff.) Gumbel, 112 La. 483, 36 South. 502; Lognion | 3. WORDS AND PHRASES—"ESTIMATE.” v. Fontenot, 121 La. 902, 46 South. 914; and its ordinary meaning is to calculate rough

The word "estimate" precludes accuracy, Warner v. Lumber Co., 121 La. 90, 46 South. ly or to form an opinion from imperfect data, 108; State v. Hackley-Hume & Joyce, 124 and the word "estimate" has no more certainty La. 854, 50 South. 772; Rudolf v. Gerdy, 121 than the term "about” or more or less” (cit. La. 477, 46 South. 598; Vital v. Andrus, 121 ing Words and Phrases, vol. 3, p. 2493). La. 221, 46 South. 217; Harris v. Harris, 109

Appeal from Twenty-Sixth Judicial DisLa. 916, 33 South. 918; Adams v. Lumber trict Court, Parish of Washington; Thomas Co., 115 La. 179, 38 South, 957; Adams v. M. Burns, Judge. Drews, 110 La. 456, 34 South. 602.

Action by F. C. Bautovich against the [7] The record owner :

Great Southern Lumber Company. Judgof late years, the decided tendency is to ment for plaintiff, and defendant appeals. let the deed of record be controlling, except

Reversed, and suit dismissed. in case of circumvention, bad faith, or fraud. Miller & McDougall, for appellant. Ott,

There is nothing of the kind in this in- Johnson & Ott, for appellee. stance. On the face of the papers, as between the last vendor and vendee in point of LAND, J. Plaintiff sued for damages in date of sale, there is not the most remote the sum of $2,640 for loss of profits alleged appearance or the least notice of bad faith to have been sustained by the failure and reon the part of the present record purchaser. I fusal of the defendant to ship charcoal, dur

ing the months of January, February, and two years, say from 1,000 to 1,200 gallons per March, under a written contract, as follows, month." viz. :

In that case plaintifr alleged : "Bogalusa, La., January 2, 1910. "Agreement between F. C. Bautovich of New “That although he has received 3,000 gallons, Orleans, La., and the Great Southern Lumber the defendant ought under the agreement to Company of Bogalusa, La., for the months of have made naphtha at the rate of from 1,000 January, February and March, 1910.

to 1,200 gallons per month, which would have "The latter agrees to deliver all charcoal made amounted to a much larger quantity than the by them at Bogalusa, estimated at two or more 3,000 gallons ; that is to say, 10,000." cars per week, weather permitting, at $122.00 per 40 foot box car,

f. o. b. Bogalusa.

And he assigned as a breach of the con"It further agrees to load cars full at Boga- tract the not delivering to him the difference lusa and to furnish a clean, dry charcoal, of between the 3,000 and the 10,000 gallons. equal grade as shipped at present by said com Lord Abinger, C. B., construed the contract pany.

"Mr. Bautovich agrees to take all the charcoal to mean that the defendant undertook to made by this company, and to pay cashi

' weekly sell to the plaintiff all the naphtha he might for cars received up to date."

make in his works during the next two years, Plaintiff alleged that he had received only and held that the declaration was insufficient four cars of charcoal under the terms of the in not averring that in the ordinary course contract, and had lost a profit of $120 per of his manufacture the defendant should car, on 22 cars of charcoal, and that he had have produced a larger quantity of naphtha repeatedly put the defendant in default, by than 3,000 gallons, or that the defendant had written demands for the shipment and deliv. fraudulently misrepresented the capacity of ery of charcoal pursuant to the terms of the his plant. Inter alia, the court said: contract.

“The words 'say from 1,000 to 1,200 gallons' Defendant filed exception of no cause of are not shown to mean that the defendant unaction, which was heard and overruled.

dertook, at all events, that the quantity manu

factured should amount to so much." Defendant then answered that it sold and delivered to the plaintiff all charcoal made And in conclusion that: by it at Bogalusa, after the date of the con

"It is consistent with the breach assigned in tract, and that said charcoal was all it was the declaration that the works were wholly inable to manufacture during the three months capable of producing more than the quantity mentioned in the agreement.

actually delivered." The case was tried, and judgment was rendered in favor of the plaintiff, for $1,680, 168, 24 L. Ed. 622, the ruling in Gwillim v.

In Brawley v. The United States, 96 U. S. with legal interest thereon from the date of Daniel, supra, was declared to be a correct the decree, and costs of suit. Defendant has exposition of the law applicable to contracts appealed.

to sell and deliver goods that may be manuThe thing sold was all the charcoal that factured by the vendor in a certain establishmight be made by the defendant at Bogalusa, ment, or otherwise identified by reference during the months of January, February,

to independent circumstances; "and the and March, 1910, and the plaintiff agreed to quantity is named with the qualification of take all the charcoal that might be made by about or ‘more or less,' or words of like the plaintiff during said period. The char- import. In this connection, the court said: coal was to be manufactured after the date of the contract, and it was estimated that

"The naming of the quantity is not regarded

as in the nature of a warranty, but only as an the plaintiff would make two or more car estimate of the probable amount, in reference loads per week.

to which good faith is all that is required of the [1, 2] The exception of no cause of action party making." restricts the inquiry to a construction of the

[3] In the case at bar, the contract shows written agreement, the words of which are

on its face that the quantity was "estimated not ambiguous. On the face of the instrument, the defendant did not agree to sell and at two or more cars per week.” The word deliver any definite number of car loads of

"estimate” precludes accuracy, and its ordicharcoal. As stated above, the estimate re- nary mearing is to calculate roughly or to fers to the output of the defendant's char- form an opinion from imperfect data. Words coal plant. It is not even alleged in the peti- and Phrases, vol. 3, p. 2493. The word "es tion that the defendant could have made timate” has no more certainty than the terms

"about” or “more or less." more charcoal than was delivered to plaintiff,

We therefore are of opinion that the exand there is no averment of fraud or bad

ception should have been sustained. faith. In Gwillim v. Daniel, 2 Crompton, M. & R. the judgment below be reversed; and it is

For the reasons stated, it is ordered that 61, the contract declared on was:

now ordered that the exception of no cause “That the defendant agreed to sell, and the of action filed by the defendant be sustainplaintiff agreed to purchase, all the naphtha which defendant might make from the first day ed, and that plaintiff's suit be dismissed,

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