The deed to the appellee, plaintiff in the court below, contains a specific description of the property as having a frontage of 69 feet and 9 inches on the east side of North Lawrence street, and also refers to the same as being the property conveyed to Laura G. Danne by the Frolichsteins in 1901, and by reference to this deed the frontage is likewise there given as 69 feet and 9 inches.
It appears without dispute that originally the strip of land here in controversy was a part of No. 10 North Lawrence street, but after the purchase of the same by Laura G. Danne she moved the division fence so as to give more room for a driveway to the adjoining property (No. 12), which she also owned.
Counsel for appellant insist that the description in this deed gives rise to the principles governing latent ambiguity, and authorizes the introduction of parol proof to show the intention of the parties, and to explain and make more clear the meaning of that part of the description of the property "known as No. 10 North Lawrence street"; while counsel for appellee insist that the conveyance by clear, definite, and certain description by metes and bounds determines the location of the boundaries, and that such a specific description must prevail over general words of description — citing Sikes v. Shows, 74 Ala. 382; Garner v. Morris, 187 Ala. 658, 65 So. 1000.
Upon consideration, however, we are of the opinion that we do not, in the instant case, reach the question treated in these authorities, as we are not persuaded that there is here presented such a case of latent ambiguity as to admit parol proof as contended for by the defendant.
The question of patent and latent ambiguity was treated with much clearness in the well-known case of Chambers v. Ringstaff,69 Ala. 140; and it is made clear that in such cases the parol proof is admissible by way of explanation of uncertainty in the description given, but it is of course inadmissible to vary or contradict the plain and express language of the written instrument. Such was the holding in the case of Foster v. Carlisle, 159 Ala. 621, 48 So. 665, wherein it was said:
"It is well settled that, where the description of property in a deed is unambiguous, parol evidence is not admissible to show a different subject-matter of conveyance to that and as described."
And to like effect is the language used in Garner v. Morris, supra, where it was said:
"The trial court could have well excluded all of the defendants' evidence which tended to override or contradict the special description of the land."
See, also, 7 Mayfield Digest, pp. 335-6, and authorities there cited.
This is of course elementary and well understood, and needs only to be applied to the instant case.
It is without dispute that originally the strip of land here in controversy belonged to what is referred to and known as No. 10 North Lawrence street, and the deed to Laura G. Danne recites that said property had a frontage of 69 feet and 9 inches. Defendant insists that the property as inclosed by fences at the time of the death of Laura G. Danne, and at the time of the sale of the same, had a frontage of only 63 feet and 6 inches. The deed to the plaintiff expressly recites a frontage of 69 feet and 9 inches on the east side of North Lawrence street, as was originally stipulated in the conveyance to Laura G. Danne, and then the deed further recites that this is the property "known as No. 10 North Lawrence street." In other words, the *Page 429 deed to the plaintiff says, in effect, that No. 10 North Lawrence street has a frontage on Lawrence street of 69 feet and 9 inches, and the proof shows that previously such was unquestionably the case. The defendant now desires to show by parol that No. 10 North Lawrence street, by reason of the change of the division fence, has a frontage of only 63 feet and 6 inches. But this would not be by way of explanation or of "clearing up" of any uncertain language used in the deed, but it would, it seems to us, be in direct contradiction of the description in the deed. This, as disclosed above, of course, is not permissible under our authorities. We are therefore of the opinion that there was no error in the rulings of the court of which defendant can complain.
Demurrer was sustained to the motion of the defendant to have the cause transferred to the equity side of the docket, and this ruling is here assigned as error. Acts 1915, p. 830.
Counsel for appellee insist, in the first place, that the sufficiency of the motion could not be rested upon a reformation of the deed to the plaintiff, as it involves a judicial proceeding (citing Stephenson v. Haines, 131 Ala. 470,31 So. 445; Goulding v. Blanchard, 178 Ala. 298, 59 So. 485; Stewart v. Wilson, 141 Ala. 408, 37 So. 550, 109 Am. St. Rep. 33); and it is further insisted that, in any event, the deed could be reformed only to express the intent of both parties to the conveyance (Holland v. Barclay, 193 Ala. 204,69 So. 118, among other authorities).
This latter insistence, without reference to the first, suffices, in our opinion, to sustain the ruling of the court; for it is not made to sufficiently appear that there was such a mutual mistake of all the parties to the conveyance as to authorize its reformation in a court of equity.
We find no error in the record, and the judgment must be accordingly affirmed.
Affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.