50 Ga. App. 3 | Ga. Ct. App. | 1934
On January 31, 1929, W. L. Harmon executed a security deed to the Bank of Weston to secure a note in the sum of $2926.60, and in said deed conveyed certain land in words as follows: “All of lot of land number 105, lying and being in the 19th land district of Stewart County, Georgia, containing 202-1/2 acres, more or less, together with all improvements, and being the lot upon which I now reside.” This security deed was duly recorded and was afterwards properly transferred to the First National Bank of Columbus, Georgia. W. L. Harmon having defaulted in payment, the bank, in the exercise of the power of sale contained in the security deed, advertised said property for sale in accordance with the provisions of said deed, and at said sale became the purchaser thereof. A warrant of eviction was brought against W. L. Harmon and his wife, to whom he had subsequently made a deed to lot number 104 in said district. In the affidavit it was alleged that W. L. Harmon and his wife were in possession of lot of land number 104 in the 19th district of Stewart County, Georgia, and that said lot 104 is the land lot on which the dwell
The entire question presented is whether the description in the security deed conveyed to the grantee lot number 105; or did it convey lot 104 on which the grantor was living at the time and has continued to live, the evidence showing that W. L. Harmon, the grantor, was in possession of and operating both lots of land ? The dwelling and most of the improvements being on lot number 104, does the description by lot number take precedence over the description “being the lot upon which I now reside?”
This case may seem on first impression to be an action respecting title to land, and, if so, this court is without jurisdiction of the case. In the case of Radcliffe v. Jones, 174 Ga. 324 (162 S. E. 679), it was held: “Where a dispossessory warrant is sued out to evict a tenant, who in his counter-affidavit alleges facts which are only defensive in character, and no equitable relief is prayed, the action is a statutory one falling within the jurisdiction of the Court of Appeals, and not within the jurisdiction of this court.” The Court of Appeals therefore has jurisdiction of the case.
Did the grantees in the security deed from Harmon secure the title to lot number 105 as described therein, or did they secure the title to lot number 104 on which Harmon lived and which contained most of the improvements? Under the evidence as it appears in the record the description is' inconsistent. Section 4187 of the Civil Code (1910) is as follows: “If two clauses in a deed be utterly inconsistent, the former must prevail; but the intention of the parties, from the whole instrument, should, if possible, be ascertained and carried into effect.” The Supreme Court in dis
From the undisputed evidence in this case it is apparent that Harmon has been living on lot number 10-1- in the 19th district of Stewart County since the year 1920. The evidence also discloses that Harmon has been in possession of lot number 104 under a deed from J. W. Barge since 1920, and his dwelling house is on said lot 104. He has made a good many improvements thereon, including a barn. There are also two tenant houses on 104. There is evidence that Harmon was in possession of lot number 105, on which was located two or three tenant houses, but the evidence is silent as to his title to lot 105. At the conclusion of the evidence the court directed a verdict in favor of the plaintiff. There is no exception to the direction of the verdict on the ground that there is a conflict in the evidence, and therefore the verdict is considered as if rendered by a jury. Arnold v. Ragan, 5 Ga. App. 254 (62 S. E. 1052); Gay v. Peak, 5 Ga. App. 583 (63 S. E. 650). The motion for a new trial complains of the introduction into evidence, over objection, of the deeds describing the property as lot number 1-05, and to the advertisement of lot number 104 under said deed. We are of the opinion that such evidence was properly admitted. The plaintiff in this case was the grantee. From the evidence, it is deducible that lot 104 had most of the improvements thereon. It was described as the lot on which the grantor was then living, and, the evidence showing' that he had lived there since 1920, the grantee was justified in thinking that the lot conveyed to him contained the major part of the improvements. Even if the title to lot number 105 was in Harmon on January 31, 1929 (which does not appear from the evidence), the grantee was justified in thinking that the lot conveyed was the lot on which the improvements on the land were situated, and the grantor, the maker of the deed, may not say that the grantee can not now claim under the description,—“being the lot on which I now reside,”—and show that this description was the real intent and purpose of the parties at the time of the making of the deed. From what has been said, we are of the opinion that the court did not err in overruling the motion for a new trial.
Judgment affirmed.