42 S.E.2d 363 | Ga. | 1947
1. Where a dividing line between coterminous owners is indefinite, unascertained, or disputed, the owners may by parol agreement duly executed establish the line, which line will control their deeds, notwithstanding the statute of frauds. Hart v. Carter,
2. "Where a deed described the property conveyed as containing ninety acres, more or less, and being the north half of a designated lot of land, and it appeared that the land lot in question contained more than two hundred acres, the description by the number of acres should give way to that by the subdivision of the land lot." Collinsville Granite Co.
v. Phillips,
3. Under the rule stated in the preceding division of the syllabus, the charge of the court with respect to the words "more or less," as set forth in the statement of facts, was calculated to influence the jury adversely to the rights of the plaintiff. This is true for the reason that, under the rule of law above stated, the plaintiff was entitled to the "east half" of the lot, containing 64 acres, more or less, and the defendant was entitled to the west half of said lot, containing 80 acres, more or less, and such a division of the lot into eastern and western halves, in the absence of any actual recognized and defined boundary *150 being approved by the jury, takes precedence over the estimated acreage as set forth in the respective deeds.
Judgment reversed. All the Justicesconcur.
Exception is taken to the charge of the court as follows: "In this case, gentlemen, the quantity `more or less' would simply mean that the number of acres is indefinite and not fixed and determined in the deed. But there is a quantity of `more or less' in both the deeds in this case — the plaintiff's and the defendant's deeds; and you will apply that qualification `more or less' to the evidence in this case and see whether or not, in applying that qualification, it will aid you in determining, and making allowances on the part of both the plaintiff and the defendant in fixing and determining where the line between these two parties should be — whether it means, on the one hand, that one party will have only 64 acres and the other party 80 acres, or whether the party having the 80 acres should not have 80 acres and the other party *152 should have more than 64 acres — you will investigate along that line and make it elastic, and make it applicable to both parties involved in this case. To illustrate what I mean, and not by way of suggestion, you take the quantity of `more or less' in determining where the line should be fixed, as contended by the defendant on the Rink line, and whether that would give, if the line was fixed as Rink's line, whether that would give the defendant 80 acres or not. If it gave him 80 acres — and then by way of further illustration, if it only left 64 acres on the east side, whether that was the intent and purpose or quantity clause in each of these deeds, or whether the quantity clause, `more or less' in each deed meant the east half of the lot in one instance and the west half of the lot in the other; whether that means the equal distance line and the east and west adjoining line on the entire lot, taking into consideration, as I have already charged you, any marks or tree or corners. In other words, it is a question for you to say where the dividing line is between the two parties in this case."
Among the exceptions taken to this charge is the following: "(a) The court, in undertaking to define the meaning of the words `more or less' as used in the deeds of the respective parties, gave an erroneous construction of the meaning of these words as used in said deeds. Movant contends that the words `more or less,' as used in the deeds introduced in evidence by the parties to the cause, properly construed, meant only that said words would cover any deficiency in acreage of the west half of the lot claimed by the defendant, or the east half of the lot claimed by movant, not so gross as to justify a suspicion of wilful deception on the State amounting to fraud, but in no case could these words, as used in the deeds of the respective parties, be so construed as to give either of the parties any additional acreage, other than that as contained in the east half of the lot or the west half of the lot. (b) Movant contends that that portion of the charge which was left to the jury to determine whether one party will have only 64 acres and the other party 80 acres, or whether the party having the 80 acres should not have 80 acres and the other party should have more than 64 acres, was erroneous, for the reason that it left the jury to determine whether one of the parties should have more than one-half of the lot. Movant contends that, since the deed of the defendant and the deed of movant each call for one-half *153 of the lot in question, both the defendant and the movant were entitled to no more than one-half of the lot, and the words `more or less,' as used in the deeds of the respective parties, cannot be construed so as to give either of the parties more than one-half of the lot, whether this one-half contained 80 acres, more than 80 acres, or less than 80 acres. (c) Said charge, as given, was prejudicial to movant for the reason that while her deed called for the east half of the lot, containing 64 acres, more or less, the deed of the defendant called for the west half of the lot, containing 80 acres, more or less, and, since the deed of the defendant called for a greater number of acres than that of movant, the charge as given permitted the jury to consider the greater number of acres, as called for in the deed of the defendant, in determining whether the dividing line between the parties should be the middle of the lot or whether the defendant should have the greater portion of the lot than movant. (d) Movant contends that, under the evidence as introduced on the trial of the case, she was entitled to recover one-half of the lot in question, whether the acreage therein be more or less than 64 acres; that defendant is not entitled to more than one-half of the lot, whether the acreage therein be more or less than 80 acres; and that the charge, as given by the court to the jury, permitted the jury to take into consideration the number of acres as called for in the deeds of the respective parties in determining what proportion of the lot should go to each of the parties. (e) Movant contends that the court should have instructed the jury, without any qualification thereof, that whether a deed conveys the east half of the lot or the west half of the lot, it cannot be construed to convey any greater portion of said lot than one-half thereof, irrespective of the recitals of the deeds as to the number of acres conveyed. (f) Said charge as given was confusing and misleading, and did not submit to the jury a correct statement of the law on the questions involved, . . which the court undertook to try to set out. (g) Movant avers that said charge was erroneous and not sound as an abstract principle of law."