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(Cal., 256 Pac. 419.)

going phrase, which in itself would be sufficiently certain as to its intent, but rather out of the use of the expression "after my deat" in the same instrument. The word "deat" as used therein is conceded to mean "death" by the parties hereto, and the question which the use of the phrase in which it occurs presents is as to what the maker of the instrument intended it to mean; that is to say, whether the instrument wherein the earlier expression "gift of deed" occurs was to be by said later expression limited to a purported transfer to take effect as such after the maker's death, in which case it would amount to no more than an attempted but abortive testamentary disposition of his properties, or whether the instrument, when considered as a whole, was to import a present transfer of title to the property affected thereby, the possession of which by the grantee was to await the death of the grantor. We are of the opinion that the instrument is ambiguous in the foregoing regard, and that, being so, it was the function and duty of the

Evidence-to

trial court to permit explain ambigu- such ambiguity to ous instrument. be explained away if possible by proof of the circumstances under which the instrument was made. Civ. Code, § 1647; Code Civ. Proc. 1860. The trial court was therefore not in error in the admission of that particular portion of the evidence in the case upon which its specific findings above referred to were predicated.

The reporter's transcript herein discloses that the objections of the defendant to the admission of such evidence went to its general admissibility based upon his theory that the instrument in question was unambiguous and could not therefore be aided as to its interpretation thereby, but that no objections were made to any specific portions of such evidence upon any other ground and no claim of error is now urged to the admission of such evidence in detail if the same was admissible at all under the aforesaid general ob

55 A.L.R.-11.

jection. We therefore conclude that the findings of the trial court were supported by the evidence properly admissible upon the trial of the case, and that they in turn support the judgment in so far as it decided therein that the maker of the instrument in question intended to convey and did convey a present title to whatever of his properties the conveyance shall be found adequate to transfer. This disposes of certain other of the appellant's contentions, such as, for example, his contention that the plaintiff's claim of title to said property through such conveyance must be held to have been negatived by his abortive attempt to procure the probate of said instrument on the theory that it was testamentary in character. The trial court, with such evidence before it, must have concluded that the plaintiff's effort in that direction did not operate to estop him from claiming under the under the instru

Appeal-finding

ness.

ment as a present against estoppel transfer of title. conclusiveThe findings of the trial court are conclusive upon that phase of the case. They are also con- character of inclusive upon the strumentclaim of the appellant that the instrument in question was testamentary in character.

-finding as to

effect.

The only remaining contention of the appellant is that the instrument under review is void for the reason that it contains no adequate description of the property intended to be affected thereby. The language of the instrument in that regard is: "This is my gift of deed all is in my possession to Mr. G. W. Brusseau." According to the modern current of authority both in this and other jurisdictions, descriptions of property similar in general terms to that embraced in the foregoing language of the instrument under review have been held susceptible of identification by extraneous evidence, and when so identified sufficient to uphold the attempted transfer. In the case of Lick v. O'Donnell, 3 Cal. 59, 58 Am. Dec. 383, a conveyance

162

of "one half of my lot" was upheld upon proof that the grantor owned but one lot in San Francisco, and the instrument was held to convey title to an undivided one-half of such lot. In the case of Pettigrew v. Dobbelaar, 63 Cal. 396, the description was "all lands [of grantor] wherever the same may be situated,' and the instrument, though executed in Illinois, was held to cover and convey land owned by the grantor in California. In the case of Staples v. May, 3 Cal. Unrep. 250, 23 Pac. 710, the description was "all the lands, sonal property the said party

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and perbelonging to

in Santa

Clara county," and it was held that extraneous proof might be offered to locate the lands conveyed within said county. In 9 Cal. Jur. p. 306, these and certain other cases are reviewed as upholding the view that "descriptions of land, general in character, such as 'all land and real estate' of the grantor 'wherever the same may be situated,' or 'the land owned by the grantor' in a certain county, or all the grantor's 'right, title and interest' in a certain city, 'consisting of town lots' etc., are good and pass the grantor's interest in all his real property coming with

in the description." In Ruling Case Law, vol. 8, p. 1076, the rule is thus stated: "Usually general descriptions, such as 'all the estate both real and personal of the grantor,' 'all my land' in a certain town, county or state, 'and my land wherever situated,' 'all my right, title and interest in and to my father's estate at law,' and the like, are held good. And a deed is not void merely because it conveys all one's property in general terms."

The evidence in the instant case fully showed that the piece of real estate described in the complaint herein was the only property which Charles Kruse owned in the city of to be Oakland, and also fully identified it as the property intended to covered by the instrument in question. We are therefore of the opinion ciency-all in that said instrument was thus shown to be sufficient in the matter of description to convey to the plaintiff title to the said property.

Deeds-suffi

my possession.

No other questions being presented for our consideration upon this appeal, the judgment is affirmed.

We concur: Waste, Ch. J.; Curtis, J.; Langdon, J.; Preston, J.; Seawell, J.

ANNOTATION.

Sufficiency and construction of description in deed or mortgage as "all" of grantor's property, or "all" of his property in certain locality.

[Deeds, §§ 57, 58; Mortgage, § 10.]

I. Scope of annotation, 162.

II. Generally, 163.

III. Effect of additional description, 166.

IV. Effect of official character of deed, 168.

V. Effect on contingent or inchoate estate, 169. VI. Effect on property previously conveyed, 169. VII. View in Connecticut, 170.

VIII. View in Virginia, 170.

IX. View in Louisiana, 171.

1. Scope of annotation. The cases collected in this annotation deal with descriptions of real property in deeds or mortgages, as "all" of the grantor's property, or "all" of his property in a certain locality.

Cases involving the sufficiency of a description to pass personal property are excluded. It should be stated, also, that no attempt has been made to cover the cases dealing with deeds of assignment for the benefit of creditors.

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Arkansas. Snyder v. Bridewell (1924) 167 Ark. 8, 267 S. W. 561.

California. Frey v. Clifford (1872) 44 Cal. 335; Pettigrew v. Dobbelaar (1883) 63 Cal. 396; Staples v. May (1890) 3 Cal. Unrep. 250, 23 Pac. 710; Borchard v. Eastwood (1901) 6 Cal. Unrep. 736, 65 Pac. 1047. And see the reported case (BRUSSEAU V. HILL, ante, 157).

Florida. Davis v. Horne (1907) 54 Fla. 563, 127 Am. St. Rep. 151, 45 So. 476.

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Prettyman v. Walston (1864) 34 Ill. 175; Hamilton v. Doolittle (1865) 37 Ill. 473; Patterson v. McClenathan (1921) 296 Ill. 475, 129 N. E. 767.

Kentucky. Starling v. Blair (1815) v. Prewitt 4 Bibb, 288; Albertson (1899) 20 Ky. L. Rep. 1309, 49 S. W. 196. Maine. Me. 398. Maryland.

See Bird v. Bird (1855) 40

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Lewis v. Kinnaird (1906) 104 Md. 653, 65 Atl. 365. Massachusetts. Fitzgerald v. Libby (1886) 142 Mass. 235, 7 N. E. 917; Drew v. Carroll (1891) 154 Mass. 181, 28 N. E. 148. See also Jamaica Pond Aqueduct Corp. v. Chandler (1864) 9 Allen, 159.

Mississippi. — Harmon v. James (1846) 7 Smedes & M. 111, 45 Am. Dec. 296.

Nevada. Brown v. Warren (1881) 16 Nev. 228.

Pennsylvania. See M'Williams v. Martin (1825) 12 Serg. & R. 269, 14 Am. Dec. 688.

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Texas. Smith v. Westall (1890) 76 Tex. 509, 13 S. W. 540; Merrill v. Bradley (1909) 102 Tex. 481, 119 S. W. 297; Brigham v. Thompson (1896)

12 Tex. Civ. App. 562, 34 S. W. 358;
Merrill v. Bradley (1908) 52 Tex. Civ.
App. 527, 121 S. W. 561.

England. Youde v. Jones (1844)
13 Mees. & W. 534, 153 Eng. Reprint,
223. See also Early v. Rathbone
(1888) 57 L. J. Ch. N. S. 652.

A deed is generally held not to be ineffective because it describes the property conveyed as all the real the grantor. estate belonging to

Wright v. Louisville & N. R. Co. (Ala.)
supra; Pettigrew v. Dobbelaar (1883)
63 Cal. 396; Lewis v. Kinnaird (Md.)
And see the reported case
supra.
(BRUSSEAU v. HILL, ante, 157). See
also III. supra.

A statutory mortgage securing
state to railroad
bonds issued by
companies, and purporting to be a first
lien on the roads and property of the
companies receiving the bonds, has
been held to be valid and to contain
a sufficient description of the mort-
gaged property to cover lands belong-
ing to such companies, though not
used for railroad purposes. Wilson v.
Boyce (U. S.) supra. In that case the
court said: "The generality of its
language forms no objection to the
validity of the mortgage. A deed 'of
all my estate' is sufficient. So, a deed
'of all my lands wherever situated' is
good to pass title. Jackson ex dem.
Howell v. Delancey (1825) 4 Cow.
(N. Y.) 427; Pond v. Bergh (1843)
10 Paige (N. Y.) 140; 1 Atk. Conv. 2.
A mortgage of all my property,' like
the one we are considering, is suffi-
cient to transfer title."

As between the parties, it would seem to be clear that a mortgage of all the real estate of the grantor is sufficient, without a particular description of the mortgaged property. Davis v. Horne (Fla.) supra.

In M'Williams v. Martin (Pa.) supra, it appeared that a deed was made to the mother of the grantor, describing the subject-matter of the conveyance as follows: "All debts, dues or demands wheresoever and whatsoever, real, personal or mixed, which are due and owing, or of right belonging unto me, either by virtue of inheritance, legacies, bonds, notes, book debts, or otherwise, or which hereafter become

due." The deed, it seems, was not recorded. The plaintiff obtained a judgment against the grantor, and purchased certain real estate, levied on and sold by the sheriff as the grantor's property. In an action of ejectment brought by the plaintiff against the grantee, the deed was admitted in evidence, and also a statement of the grantor that the deed was a conveyance of the property in question. The court held that the words in the deed, describing the property conveyed, were not to be taken in a technical sense, and that an intention appeared on the face of the instrument to convey all property of the grantor, of whatever kind or nature. The admission in evidence of the grantor's statement was held, however, to be error, and a judgment for the defendant was reversed and a new trial awarded, the court saying: "The record shows that it is open to other inquiries, admitting this to be the legal construction, whether it was fraudulent or not, as to the creditors. The plaintiff, a purchaser at sheriff's sale, might be ignorant of the execution of such conveyance; it might have taken her by surprise on the trial, and unprepared to exhibit any evidence to show the fraud; and, as the court is of opinion there was error in admitting parol evidence of the declaration and intention of the grantor, justice requires that the judgment should be reversed and a new trial take place."

Property restricted to city or town.

A deed or mortgage is not void for insufficient description of the subjectmatter, which purports to transfer all the grantor's real property in a certain city or town. Frey v. Clifford (1872) 44 Cal. 335; Prettyman v. Walston (1864) 34 Ill. 175; Hamilton v. Doolittle (1865) 37 Ill. 473; Fitzgerald v. Libby (1886) 142 Mass. 235, 7 N. E. 917; Drew v. Carroll (1891) 154 Mass. 181, 28 N. E. 148; Harmon v. James (1846) 7 Smedes & M. (Miss.) 111, 45 Am. Dec. 296. See also Bird v. Bird (1855) 40 Me. 398.

In the case last cited the court said: "The deed is denied to be effectual to pass the estate, because of the uncer

tainty of the description of the land. The property is described as being 'all our right, title and interest, and all real estate, which we own or have claim to, situated in Belfast in said county of Waldo, and particularly all that belongs to us as the heirs or legal representatives of Andrew Bird, formerly of Belfast, deceased.' If it could be shown that Andrew Bird, deceased, was the owner of real estate in the town of Belfast, in the county of Waldo, at the time of his decease, the right of these grantors therein would not fail to pass, by any uncertainty in the description. An officer's return of an attachment of all the debtor's right, title, and interest in and to any real estate in a given county is valid and sufficient to hold all his real estate therein, subject to attachment, in the suit in which it was made. Roberts v. Bourne (1843) 23 Me. 165, 39 Am. Dec. 614. No good reason is perceived to exist against the effect of a similar description in a deed."

An interest of a mortgagor as a tenant in common of undivided lands has been held to be covered by a mortgage on all the real estate owned by the mortgagor in a certain city, though not described with particularity. Drew v. Carroll (1891) 154 Mass. 181, 28 N. E. 148.

The description is sufficient in a mortgage conveying all the lots owned by the mortgagor in a designated town, whether he has the legal or equitable title. Starling v. Blair (1815) 4 Bibb (Ky.) 288, wherein the court said: "The expression used, though general, is not uncertain. It clearly and explicitly manifests the intention of the parties, and there is nothing unlawful in that intention. There may, indeed, be more difficulty in ascertaining the lots intended to be conveyed, where the language used in describing them is thus general, than if the lots had been designated by their numbers. But it is in the degree and not in the nature of the difficulty that the two cases differ. . In both cases

resort must be had to evidence aliunde for the purpose of identifying the lots which are the subject of the conveyance."

Property restricted to riparian land.

In Albertson v. Prewitt (1899) 20 Ky. L. Rep. 1309, 49 S. W. 196, a mortgage was held not to be void for uncertainty which described the mortgaged property as all the lands which the mortgagor held on a certain stream. The decision was based chiefly on the authority of Starling v. Blair (Ky.) supra.

Property restricted to sections.

Similarly, a deed has been held not to be void for uncertainty which purported to convey all the interest of the grantor in designated sections. Patterson v. McClenathan (1921) 296 Ill. 475, 129 N. E. 767. In that case the court said: "The sole purpose of a description of land as contained in a deed of conveyance being to identify the subject-matter of the grant, a deed will not be declared void for uncertainty if it is possible, by any reasonable rule of construction, to ascertain from the description, aided by extrinsic evidence, what property it is intended to convey. 8 R. C. L. 1074; Colcord v. Alexander (1873) 67 Ill. 581; Smith v. Crawford (1876) 81 Ill. 296; Koelling v. People (1902) 196 Ill. 353, 63 N. E. 735. In Prettyman v. Walston (1864) 34 Ill. 175, the description was, 'to all lots and parts of lots in the city of Pekin,' and the court held that the description was sufficient, because proof might be made of what passed by the general description in the deed. In Holbrook v. Forsythe (1884) 112 Ill. 306, the description was, 'all the real estate and lands to me belonging and being in the state of Illinois,' and it was held to be sufficient. The main object of the description of land sold and conveyed in a deed of conveyance is not, in and of itself, to identify the land sold, but to furnish the means of identification. Very few descriptions in an instrument of conveyance would be sufficient to locate the land intended to be conveyed without the aid of extrinsic evidence. When the deed furnishes the means by which land may be identified and located, it is sufficient. Tiffany, Real Prop. 2d ed. 1646; Harper v. Wallerstein (1918) 122 Va. 274, L.R.A.1918C, 517, 94 S. E. 781; Colcord

v. Alexander (1873) 67 Ill. 581, supra. There was no mistake in the deed of Mrs. McMillin, and it was not necessary for the court to reform or correct the deed. The description in the deed makes it clear what land was intended to be conveyed by it, and furnishes the means for identifying the particular land conveyed. In such a case the maxim, 'that will be considered certain which can be made certain,' applies. This deed is not void for uncertainty."

Property restricted to county or counties.

A mortgage of all the mortgagor's property in certain counties contains a sufficient description of the mortgaged property to pass a good title to a purchaser at the foreclosure sale. Snyder v. Bridewell (1924) 167 Ark. 8, 267 S. W. 561. In that case it was held that the description of the mortgaged property was not a good defense to an action by grantees of the purchaser at the foreclosure sale to foreclose a vendor's lien for the purchase money due from persons to whom the plaintiffs had made a conveyance.

A fortiori, a deed or mortgage of all of one's property in a certain county contains a sufficient description of the property. Staples v. May (1890) 3 Cal. Unrep. 250, 23 Pac. 710; Brigham v. Thompson (1896) 12 Tex. Civ. App. 562, 34 S. W. 358; Youde v. Jones (1844) 13 Mees. & W. 534, 153 Eng. Reprint, 223.

In Brigham v. Thompson (1896) 12 Tex. Civ. App. 562, 34 S. W. 358, supra, the court said: "It being shown that the appellants were the owners of the land at the time they made the deed to Harrison, the description. which conveyed all the land they owned or had an interest in, in Hunt county, was sufficiently descriptive of the property to pass the title."

As to land not claimed to be within the exceptions, a deed of all the land owned by the grantor in a certain county, with some exceptions, is not inoperative for lack of an adequate description of the land. Borchard v. Eastwood (1901) 6 Cal. Unrep. 736, 65 Pac. 1047.

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