Harris v. Hull

70 Ga. 831 | Ga. | 1883

Hall, Justice.

1, 2. This case has been tried three times, and each trial has resulted in a verdict for the defendant. The last verdict was set aside and a new trial ordered by the judge presiding, and to this judgment exception is taken. Unless there was some error of law prejudicing the plaintiff, this verdict should not have been set aside, especially as the evidence, to say the least, was conflicting, and there was enough in it to authorize, if not to require, the finding. It is certainly to the interest of parties, as well as the public, that there should be an end of litigation. One great purpose in establishing this court was to terminate suits, and with this view, it is made its duty not only to grant judgments of affirmance or reversal, .but any other order, direction or decree required, and if necessary to make a final disposition of the cause (Oode, §218), and it is empowered to give to the cause in the court below such direction as may be consistent with the law and justice of the case. Ib., §4284. Litigation should never be protracted where this, with due regard to the rights of parties, can possibly be avoided. Interest rei publiece ut sit finis litium is a maxim so old that its origin is hidden in a remote antiquity, and the policy which it inculcates is so essential as not to admit of question or dispute.

This suit is prosecuted to recover the amount of a promissory note given by the defendant to John S. Linton for the purchase money of lot of land number 95, in the-district of Worth county, and by him transferred after it became due to plaintiif’s testator, who in his lifetime instituted suit thereon. The defence set up to the suit, was that the land was encumbered by a mortgage given by Linton to one Rowley previous to the sale to defendant, and which fact became known to defendant some time after the purchase and after he had occupied and improved the premises; that he has been compelled to surrender the land to the purchaser under the mortgage, and to repurchase it at an advanced price, and hence the consideration for which the note sued on was given, has entirely failed. The mortgage to Rowley called for seventeen hundred and sixty acres of land, contained within certain boundaries, and being the lands which Linton purchased from divers persons named therein, among whom was Terrell T. Monger. The land was described as bounded on the north by Swift creek, on the west by Flint river, and on the south by the Holliday and Deriso lands: If the description by metes and bounds is to control, and not that contained in the deeds referred to in the mortgage and in the deed subsequently made in the settlement and extinguishment of the mortgage, then it is conceded that the defence is well founded, unless it be true, as contended, that by following the description by metes and bounds, the mortgage would cover more land than the quantity called for, by one hundred and sixty acres, or than the deed made in extinguishment and settlement of the same, which was for seventeen hundred and twenty acres, would give an excess of two hundred acres above the quantity conveyed. Rowley testifies that he caused the land to be surveyed and measured, and according to that measurement it required lot number ninety-five to make the quantity conveyed to him. All the other deeds referred to in the mortgage as descriptive of the lands included in the mortgage, except that from Monger, were present at the trial, and these documents, it is insisted, including Monger’s deed, showed that Rowley, got the quantity of land conveyed by the mortgage, less forty acres, and the precise quantity conveyed by the deed given him in settlement of the mortgage. It is also shown that Rowley viewed the premises and made an inspection of the boundaries before taking the mortgage; that Linton’s agent pointed them out, especially the southern boundary, about .which alone there is in this litigation any dispute. The map in evidence makes it plain that the Holliday lands consisted of lots 143 and 96, and to the east of this last lot, and adjoining it, is the Deriso lot number 89. Lot 95 lies directly north of Holliday’s eastern lot, 96, and north of that lies number 94, which no one disputes is included in the mortgage, and lots 90, 91 and 92f which are also unquestionably in that instrument, lie directly north of 89, the Deriso lot. Under well settled principles of law, it would seem that this verdict was not only authorized but required by the evidence in the case. It is well settled that, in construing conveyances of land, effect is to be given to every part of the description, if practicable; but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain. “ Thus courses and distances shall yield to natural and ascertained objects.” “ Indeed, it seems to be a universal rule that ’course and distance must yield to natural, visible and ascertained objects.” This rule is founded “ upon the legal presumption that' all grants and conveyances are made with reference to an actual view of the premises by the parties thereto.” This presumption is strengthened in this case by the fact that an actual’' view of the premises was had before the conveyance was taken. Again, “ whenever in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern, although neither courses nor distances nor the computed contents correspond with such boundaries.” These are the rules of law applicable to this case, as laid down by Mr. Tyler in his work on the Law of Boundaries, pp. 119, 120, which he supports by copious references to cases. Add to these the rule that where all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction must prevail which is most favorable to the grantee,” (Ib., 123, and cases cited), and we think that the defence made in this case becomes complete, if not irresistible. See also 20 Ga., 689; 54 Ib., 608. In so far as the charge of the presiding judge, therefore, gave preference to the description contained in the deeds referred to in the mortgage and the deed made in settlement thereof, in. stead of the boundaries specified therein, it was error, but error that did not hurt the plaintiff.

3, 4. The other exceptions made by the plaintiff to the rulings of the court in admitting and rejecting testimony are not well taken, the grounds upon which they were made are not sustained by the facts in evidence. As to one of them, it has been repeatedly determined by this court, that a deed given in payment of a debt, although usury may have entered into the consideration, is not thereby rendered void, it is otherwise where the deed is given to secure a debt.

5, Such of the plaintiff’s requests to charge as were refused by tbe court ought, upon the principles herein determined, to have been refused. The judgment of the court below granting the new trial was, under all the circum stances, erroneous, and must be reversed.

Judgment reversed.