161 Ga. 468 | Ga. | 1926
(After stating the foregoing facts.)
The action is a joint one against the Atlanta Loan & Trust Company and W. C. Redding. The defendants demurred separately. The bank in its demurrer set up that Redding was not its agent; that it was not bound by any contract that may have been entered into by him. Redding alleged that he could not be sued individually, because he was the alleged agent of the bank. To this extent the claims of the defendants were conflicting. Both, however, joined in the contention that the description of the land in question was insufficient to effect any conveyance of the land, and insufficient to comply with the statute of frauds. Therefore we shall first determine whether the description as contained in the statement of facts is sufficient to so describe the land as that it is capable of identification and conveyance. It is well settled that an insufficient description is void to effect a transfer of any interest in real estate. It seems to be equally well settled that parol evidence, though incompetent and inadmissible to add to, vary, or alter the terms of a written contract, Inay be used -to make certain that which is uncertain, if it be perfectly plain from the description in a contract of sale of land what property the grantor intends to convey. It is true, as argued by the defendants in error, that the description of the land, as contained in the' contract in this case, might include only one foot square of land at the northeast corner of Bell Street and Auburn Avenue; and yet we are of the opinion that the contract bespeaks an intention to sell all of the lot owned by the Atlanta Loan & Trust Company at the northeast corner of Bell Street and Auburn Avenue (thus fronting on' both these streets) for whatever length this lot of the Atlanta Loan & Trust Company may extend along both these streets, and that extrinsic evidence is competent and admissible for the purpose of determining the exact boundaries of' the lot. We think the case is controlled by the ruling in King v. Brice, 145 Ga. 65 (88 S. E. 960). We are of the opinion that when the statement is made that the lot is at the northeast corner of the streets that have been named and that the property is owned by the Atlanta Loan & Trust Company, and there is nothing to sug
That certain tract or parcel of land belonging to the Atlanta Loan & Trust Company, located on the northeast corner of Auburn Avenue and Bell Street in the City of Atlanta, Fulton County, Georgia, certainly excludes any idea that the Atlanta Loan & Trust Company owned more than one lot contemplated to be sold; because in the nature of things there can only be one lot on the northeast corner of Auburn Avenue and Bell Street that could be the property of any one. There can be but one northeast corner of any city block in any city. The language used can only be held to imply that the Atlanta Loan & Trust Company owns the lot on the northeast corner, and that it is selling the whole of that lot; for there is no reference to any undivided interest nor any reference to any interest that is indefinite, the language being, “that certain tract of land belonging to Atlanta Loan & Trust Company, located on the northeast corner of Auburn Avenue and Bell Street.” For this reason the rulings in Pickens v. Phillips, 123 Ga. 415 (51 S. E. 410), and Nettles v. Charles P. Glover Realty Co., 141 Ga. 126 (80 S. E. 630), are not in point. In the Phillips case there was no description of the land as to city or county. It was in the wide, wide world. In the Nettles case it nowhere appeared who owned the northwest corner of Boulevard and Randolph Street, nor did it appear that this was the only piece of property owned by the seller at this location. In the case at bar it appears that the Atlanta. Loan & Trust Company was the owner of only one piece of land at this location. This puts the present case without the Nettles case and places it squarely under the ruling in King v. Brice, supra, where the description of the land in a contract for its sale was held not to be so vague and indefinite as to render the contract unenforceable by an action for specific performance, when such description can be applied to the
“While evidence is inadmissible to add to, take from, or vary a written contract, all the attendant circumstances may be proved;
The petition in the instant case was not demurrable upon the
In dismissing the petition the trial court also sustained demurrers based upon the ground that the contract was one relating to an interest in land, and that the written agreement which was set out as the basis of the petition was not sufficient to satisfy the statute of frauds; and it was urged that the description of the property was so vague and indefinite as to render the contract unenforceable. The same contentions were made in the case of Pearson v. Horne, 139 Ga. 453 (77 S. E. 387). In that ease the description was, “my half interest in the property corner of Second and Cherry Streets, Macon, Georgia;” and we held that while these words furnished a poor description of the property which formed the subject-matter of the contract, it was not on its face so vague and indefinite as to be incapable of.being applied, by the aid of extrinsic evidence, to the property at that location in which the signer of the agreement had a half interest. Certainly, if the rule applies where the owner only purports to own a half interest, it would apply with equal, if not double force where the owner has the entire interest. As said by Mr. Justice Lumpkin, delivering the opinion of the court, in the Pearson ease, “If the description in the contract itself were so indefinite as to be incapable of application, the allegation in the petition that the property was known by a certain name would not save the contract, but the contract itself is not on its face void for indefiniteness of description.” In support of this proposition Horton v. Murden, 117 Ga. 72 (43 S. E. 786), Harriss v. Howard, 126 Ga. 325 (3), 330 (55
The petition alleged that W. C. Bedding was the agent of the Atlanta Loan & Trust Company for the sale of the lot in question and in making the contract which appears in the record. There is no allegation that he was not the agent of the Atlanta'Loan & Trust Company or that he committed a fraud by falsely holding himself out as such agent, or any other allegation which in our opinion would subject him to individual liability. There is no allegation of wrong-doing on the part of Bedding, by reason of which he would be personally bound or responsible in damages. In paragraph fifteen of the petition it is alleged that the corporation has breached its contract and has damaged petitioner, but there is no allegation that Bedding has breached any contract and thereby damaged the petitioner. The judgment of the lower court sustaining the demurrer of the defendant W. C. Bedding and dismissing him from the case is therefore affirmed.