"Certainty to a common intent in pleading is essential to the due administration of justice, and it cannot be abolished. By certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of courts, and other conserving principles of procedure are assured. — 2 Hughes on Prop. 474. And, to come nearer to the needs of the instant case, certainty in some degree is required to give adversary parties reasonable notice of what they must be prepared to meet, and to speed the disposition of causes under their merits. — Tennessee Coal, I. R. Co. v. Smith, 171 Ala. 251,55 So. 170." This principle has been so often stated in Alabama that it is a truism of the law of procedure. Woodward Iron Co. v. Marbut, 183 Ala. 310, 313, 314, 62 So. 804; Schwartz Motor Co. et al. v. Bradley Real Estate Ins. Co., 220 Ala. 295,125 So. 26; Federal Land Bank of New Orleans v. Mulkey, 228 Ala. 500,153 So. 775; Bradford et al. v. Sneed et al., 174 Ala. 113,56 So. 532.
There is another rule of pleading, a counterpart of the rule just stated, and equally as well settled in this jurisdiction, to wit: "On demurrer, averments of pleading must be construed most strongly against pleader, and all intendments resolved against him." Federal Land Bank of New Orleans v. Mulkey, supra.
A habitual disregard of these rules, now so firmly grounded in the law, by this court, evinces a lack of due appreciation of their purpose, and portends their abandonment or destruction. The majority opinion clearly ignores these rules of pleading.
In Montgomery Iron Works v. Dorman, 78 Ala. 218, 220, 221, it was observed: "The purpose of the statute, in requiring the claim to be filed with the judge of probate, is to give notice to purchasers and creditors. For this purpose, the description of the property, on which the lien is claimed, is material. It should be sufficiently certain to designate the property to be charged. It is sufficient, if the description points out the premises, so that, by applying it, the land can be identified. The language of the statute is, 'a true description of theproperty, or so near as to identify the same.' Convenient and reasonable certainty is requisite. When the lien on the land is to the extent of one acre, and the tract of land contains more acres than one, the particular acre on which the lien is charged must be pointed out, and designated by a description sufficiently certain to identify and separate it from the balance of the tract. The same certainty of description is requisite as in case of a levy under execution, so that the court may be informed what land to order sold, and the purchaser be able to locate it. Without such description no lien is acquired."
The majority opinion concedes that the description is void as to the one acre, but holds that it is valid as to the building and the land on which it is situated. The building in the exhibit to the bill is described as "a one story frame storebuilding," etc. (Italics supplied.) This averment does not designate any particular building, and there is nothing in the statement of the lien or the averments of the bill that there is but one "one story frame store building" *Page 463 on the 80-acre tract, and, if it should be conceded that a description which is not certain on its face might be made certain in the light of other facts, there is no such averment in the bill. Therefore, "treating the averments as true, yet if a case may be supposed consistent with them, which would render the averment insufficient, such case will be presumed or intended, unless excluded by particular averments." Alabama Baptist Hospital Board v. Carter, 226 Ala. 109, 112,145 So. 443, 444.
It is not out of place to state here that "The rule that the absolute owner of property has the right to transfer it by any description which, together with parol evidence, may ascertain the property conveyed, applies only to sales and transfers by the absolute owner, and not to sales in invitum of his property; such as execution sales, where the property levied upon must be described with such certainty as will enable any one to know the property taken in execution, and to give purchasers notice of what they are buying, and that the debtor's property may not be unnecessarily sacrificed." Herman on Executions, p. 289, § 191; Bradford et al. v. Sneed et al., supra.
The demurrer, in my opinion, was well taken and should have been sustained.
I therefore respectfully dissent.