34 S.E.2d 438 | Ga. | 1945
1. Where a deed fixes the northern boundary of a tract of land as the "Alabama and Cave Spring public road," the legal effect of such description, in the absence of a contrary intention being manifested in the instrument, is, that the road open and actually in use by the public is the road intended by the parties, rather than the site of an old road. The language, being unambiguous, can not be aided by extrinsic evidence to extend the boundary to the old road site, the sole remedy for *371 such purpose being reformation of the deed. Although the petitioner prayed for reformation, there was no evidence to show any mutual mistake of the grantor and the grantee, and, reformation being a prerequisite to the relief sought, the verdict in her favor was unauthorized.
The court did not err in charging, immediately in connection with instructions as to the preponderance-of-evidence rule and the credibility of the witnesses and as to the treatment of any conflict in the evidence, that, "You, the jury, are the exclusive judges of the evidence and of the weight of the evidence. It is a question for the jury to say who they will believe and what they will believe, and it is a matter with which the court has nothing whatsoever to do; and in that connection I charge you that if the court should inadvertently express any opinion as to what has or has not been proven you will disregard that altogether."
To that part of the answer of the administratrix of the estate of the petitioner's grantor seeking to recover $1000 as the consideration of the deed executed to the petitioner on August 19, 1938, and alleged not to have been paid by the petitioner, who was alleged to be a resident of the State of New York, the court properly sustained the petitioner's demurrer on the ground that the alleged debt was barred by the statute of limitation of four years, the allegations, construed most strongly against the pleader, showing that the petitioner was a nonresident before the debt was incurred, and the Code, § 3-805, as to tolling the limitation where one has removed from the State after a debt has been incurred, not being applicable.
The court did not err in overruling the administratrix's motion to be dismissed as a party defendant, since, in order to obtain reformation of the deed as prayed for by the petitioner, the administratrix of the estate of her grantor was a necessary party defendant.
It was conceded by the parties that, under the deed to the common propositus, he held title to all of the lands south of the old road, and that, prior to the conveyance to the petitioner, a new and paved highway had been constructed south of the old road, the property in dispute being north of such new road and south of the old road. There was testimony on the trial of the case as to possession of the five acres in dispute, by agents of the petitioner and also of Mrs. Hernandez, and conflicting testimony as to whether Minhinnette, after deeding to the petitioner, remained in possession for her or otherwise. The respective deeds to the petitioner and Mrs. Hernandez were in evidence, but only the description of the property conveyed by each deed, together with the dates of the deeds, is set forth in the brief of the documentary evidence, the descriptions of the roads varying as hereinbefore mentioned. As to the old road, the testimony was substantially as follows: Even before the execution of the deed to the petitioner in 1938 it had been fenced for Minhinnette's yearlings. The only part left was a very short part that "leads to the house." A barbed wire had been run across the road, preventing its use except through a gate. It was full of ditches. It can not be used except in going to the fields. Part of the road is practically washed away. It could be used in a limited way, but, generally speaking, has been abandoned and has not been worked by the county, the State, or anybody, or used by the public as a road, though some people occasionally crossed it.
The court instructed the jury as to consideration of the evidence introduced by the petitioner as to her contention that it was the intention of Minhinnette and herself that all of the property held by him south of the old road be conveyed to her, and that, "If *374 you find that she is entitled to recover the property referred to as between the old and the new or paved Cave Spring and Center, Alabama, roads, and that these parties should be restrained from interfering with her, and that title to this property be decreed in her, then the form of your verdict would be: `We, the jury, find in favor of the plaintiff,' which would mean" that she would be entitled to recover the property to which she asserted title, and the defendants would be enjoined from interfering with her possession, and title be decreed in her. The court also instructed the jury as to the conditions under which a verdict might be returned in favor of Mrs. Hernandez and in favor of Mrs. Maud Welch, as administratrix of the estate of E. R. Minhinnette, deceased, as to their respective claimed portions of the land between the two roads. The jury returned a verdict reading: "We, the jury, find for the plaintiff." The defendants filed a motion for new trial on the general grounds, and by amendment added several special grounds. The court overruled the demurrers, and in the bill of exceptions error is assigned on the judgment overruling the motion for new trial; and Mrs. Maud Welch, as administratrix, assigns error on her exceptions pendente lite to the judgment sustaining the petitioner's demurrer to that part of her answer in which she sought to recover $1000 as the purchase-price of the lands conveyed to the petitioner, and to the judgment overruling her written motion to be dismissed as a party defendant. 1. In seeking injunction and other relief in the present case, the petitioner alleged that she believed that the description in her deed, referring to the Alabama and Cave Spring public road as the northern boundary of the lands conveyed, really expressed the intention of the grantor that the old road was intended as such boundary, but she nevertheless prayed that the deed be reformed to more clearly express the real intention of the parties by inserting the word "old" before the words "Alabama and Cave Spring public road."
If the description is ambiguous but sufficient to furnish a key to the boundary, extrinsic evidence may be used to correctly apply the description to the true boundary intended by the parties. Hulsey *375
v. Clark,
Is the language here involved, the "Alabama and Cave Spring public road," ambiguous or unambiguous? Where a road is referred to in a conveyance as a boundary, the road as open and actually used as a public road at the time of the conveyance, rather than as it formerly existed, is to be taken as the boundary intended by the parties, unless, of course, a contrary intention is manifested by the instrument, to determine which all of the language of the deed may be looked to. See Johnston v.Palmetto,
The evidence compels the view that the old road had been abandoned in 1928, and that a new paved highway on the south thereof had become the only Alabama and Cave Spring public road actually in use by the public at the time of the execution of the deed to the petitioner in 1938. This being true, it necessarily follows from the authorities above discussed that the description here involved is in law unambiguous, and means that the new paved highway, and not the old road, must be taken as the northern boundary of the lands conveyed. The record is silent as to any mutual mistake of the parties as to the boundary expressed in the petitioner's deed and hence there was no basis for reformation of the instrument. Reformation being a prerequisite to the relief sought, the verdict in favor of the petitioner was unauthorized.
2. Special ground 4 complains that the court erred in charging the jury as follows: "You, the jury, are the exclusive judges of the evidence and the weight of the evidence. It is a question for the jury to say who they will believe and what they will believe, and it is a matter with which the court has nothing whatsoever to do, and in that connection I charge you that, if the court should inadvertently express any opinion as to what has or has not been proven, you will disregard that altogether," it being contended that thereby the court erroneously instructed the jury that they could arbitrarily reject any and all evidence without any reason for so doing. The court fully charged the jury as to the preponderance-of-evidence rule and the credibility of the witnesses and as to their treatment of any conflict in the evidence, immediately in connection with the portion objected to. No error is shown. Quinton v. Peck,
3. To that part of the answer of Mrs. Maud Welch, as administratrix of the estate of E. R. Minhinnette, deceased, seeking to recover $1000 as the consideration of the deed executed to the petitioner on August 19, 1938, by the intestate and alleged not to have been paid by the petitioner, who was alleged to be a resident of the State of New York, the petitioner demurred on the ground that the debt was barred by the statute of limitation of four years. Error is assigned on the judgment sustaining the demurrer, it being contended that as the petitioner was a resident of the State of New York the statute did not run. The claim here involved was barred after four years from August 19, 1938. Code, § 3-711. The statute upon which the administratrix evidently relies, § 3-805, providing that, "If the defendant, in any of the cases herein named, shall remove from this State, the time of his absence from the State, and until he returns to reside, shall not be counted or estimated in his favor," has no application here. The basis for the saving provision is, of course, inability to bring suit in this State because of the temporary absence of the debtor. To come within the words of the statute, the defendant must have been a citizen of this State at the time of the accrual of the debt and subsequently have removed from the State. See Pare v. Mahone,
4. The assignment of error on the judgment overruling the written motion of Mrs. Maud Welch, as administratrix, to be dismissed as a party defendant is obviously without merit, since, in order to obtain a reformation of the deed executed to the petitioner, the administratrix of the estate of the grantor was a necessary party defendant.
Judgment reversed. All the Justices concur, except Bell, C.J., and Grice, J., who dissent.