17 S.E.2d 12 | Ga. | 1941
1. The instrument by express terms and in fact following the promissory note, to which reference was made, sufficiently disclosed a grantee. Compare Mason v. Parker,
2. There being no defeasance clause embodied in the instrument, and the instrument being such as to convey title to secure a debt, the instrument must be construed as a security deed rather than a mortgage. Where a conveyance is clearly expressed by the terms of the instrument, the absence of the usual habendum clause will not operate to invalidate the conveyance of title actually made.
3. "Where a deed conveying title is given to secure the payment of a promissory note, suit thereon for the possession of the land may be maintained after the lapse of twenty years from the date of the maturity of the note, and the statute of limitations is not applicable." Kirkpatrick v. Faw,
4. While it is true that in an ejectment suit to recover land held by the grantor of a security deed the plaintiff must recover on the description set forth in the instrument under which he claims title (Metropolitan Life Insurance Co. v. Hall,
5. The amendments to the petition, seeking to further describe the land sued for, could give no additional vitality to the deed forming the basis of the suit, other than to show that the deed by its own terms, when taken in connection with the physical facts as to the lines of the adjoining owners named in the deed, necessarily and in itself afforded its own key by which the property conveyed could be positively identified, as set forth in the additional description.
6. The description contained in the security deed does not afford any adequate and definite description, since it appears by the petition as amended that the actual physical conditions are such that the lines could not be run in accordance with the descriptive requirements of the deed, and that the additional elements of description pleaded in its support are not only not in accordance with any key supplied by the deed itself, but are in contradiction of the terms therein expressed.
7. Under the foregoing rulings, the petition failed to set forth a cause of action, and was properly dismissed on general demurrer.
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Some elaboration of headnote 6 seems proper. Taking the description of the land sued for as contained in the security deed, since it appears that the entire eastern boundary is described as being the original land line of lot 213, and since the southern boundary of the premises is likewise ascertainable as being the northern boundary of land belonging to Gee, the southeast corner of the conveyed premises is determined by the point where the northeast corner of Gee's land touches the original line of lot 213. From this starting point, following the northern boundary of Gee's land westward until the land of Williford is reached renders certain not only the southeastern corner and the southern line, but the southwestern corner. Then starting at the southwest corner as thus ascertained, and proceeding north along the Williford land line to a point sufficiently far, so that a straight line running east to the original land line would embrace 39 acres, would, except for the reason hereinafter stated, complete the description. Except for that reason later mentioned, this could be done; for, as was held in the similar case of Moody v. Vondereau,
It appears, however, that such a northern boundary line running west to east so as to include thirty-nine acres as required by the security deed can not be established without contradicting other vital descriptive data given by the same deed, since it is a physical fact, which is shown to be true by the amendment to the petition, that such a northern line running from west to east so as to include the required thirty-nine acres would not strike the original land line of lot 213 at all, as would be required by the security deed, but would strike a church lot, and the land as thus surveyed *260 would not be bounded on the east entirely by the original land line of lot 213. Even were it possible to assume that, without any authority or key from the terms of the security deed, this northern line might be so run as to cut off forty acres, instead of the stated thirty-nine, and thus allow for the one-acre church lot, this too would be in contradiction of the explicit terms of the security deed, since the land thus segregated and set apart would be bounded on the east only partly by the original land-lot line and partly by the church lot, whereas the deed says that the eastern boundary, which means the entire eastern boundary, is the original land line of lot 213. Accordingly, the descriptive language given by the security deed is fatally deficient, and fails to afford the basis of a definite description; and not only is there no key for the aid pleaded in its support by the amendment to the petition, but the actual physical facts thus pleaded are in direct contradiction to the data embodied in the security deed itself, on which the plaintiff must rely.
While, as counsel for the plaintiff submit, it was said by this court in McCaskill v. Stearns,
Judgment affirmed. All the Justices concur. *262
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