Ambiguous Deed Construction

The case followed by the Court of Civil Appeals in concluding that the deed is ambiguous is Financial Investment Corp. v. Tukabatchee Area Council, Inc., 353 So. 2d 1389 (Ala. 1977). In that case we held:

"It is, of course, a fundamental rule of construction that the real inquiry in construing the terms of a deed is to ascertain the intention of the parties, especially that of the grantor, and if that intention can be ascertained from the entire instrument, resort to arbitrary rules of construction is not required. Wilkins v. Ferguson, 294 Ala. 25, 310 So. 2d 879 (1975); Gulf Oil Corp. v. Deese, 275 Ala. 178, 153 So. 2d 614 (1963).

"The courts, in construing conveyances, must ascertain and give effect to the intention and meaning of the parties, 'to be collected from the entire instrument.' Brashier v. Burkett, 350 So. 2d 309 (Ala. 1977); Stratford v. Lattimer, 255 Ala. 201, 50 So. 2d 420 (1951).

"Plaintiff argues the trial court was correct in admitting extrinsic evidence of the parties' intentions because, it contends, the italicized language in the deed is ambiguous. It is, of course, true that where a deed is of doubtful meaning, or where the language of a deed is ambiguous, the intent of the parties to the deed as to what property is conveyed may be ascertained by reference to facts existing when the instrument was made, to which the parties may be presumed to have had reference. Lietz v. Pfuehler, 283 Ala. 282, 215 So. 2d 723 (1968).

"However, if the language is plain and certain, acts and declarations of the parties cannot be resorted to, to aid construction. Id.; Hall v. Long, 199 Ala. 97, 74 So. 56 (1916).

"We have carefully examined the language of the description in the deed, and we conclude that the language contained therein is not, on its face, ambiguous.

In fact, the plain meaning of the language of the italicized portion, its punctuation and juxtaposition to the other portion, admit of but one conclusion, that the Haardts intended to convey to defendant, Jennings, the italicized portion of the description.

"In ascertaining the intention of the parties, the plain and clear meaning of the deed's terms must be given effect, and parties must be legally presumed to have intended what is plainly and clearly set out. Camp v. Milam, 291 Ala. 12, 277 So. 2d 95 (1973)." 353 So. 2d at 1391.