Ray v. Pease

95 Ga. 153 | Ga. | 1894

Simmons, Chief Justice.

1. It will be seen from the official report of the case, that the controversy between these parties arises from a defective description of the land conveyed by Grubb to the trustees of Mrs. Pease, it being contended by the plaintiff' in error that the description is so uncertain as to render the deed void, and that if not void, it should be reformed. That description is as follows :

“All that tract or parcel of land lying and being in the seventeenth district of originally Henry, now Fulton county, in said State (Georgia), being part of land lot number one hundred and six in the seventeenth district aforesaid, bounded as follows : commencing at the northwest corner of said lot, running south on Boring lot fifteen hundred feet; thence east six hundred and eight anda half feet to a stake corner; west six hundred and eight and a half feet to commencing corner, containing ten acres more or less.”

The lines here given as bounding the tract, it will be seen, do not form a complete boundary. Courts, however, will not declare a deed void for uncertainty as long as it is possible, by any reasonable rule of construction, to ascertain from the deed what property was intended to be conveyed. A description of the land which can be made certain will be treated as sufficient, and the land will pass to the grantee. 1 Shep. Touch, p. 250; 2 Am. & Eng. Enc. of Law, art. Boundaries, p. 496. Looking to the above description, we find that there are two lines which are absolutely certain; the first, which commences at the corner of a certain lot and runs south 1,500 feet, and the second, which commences at the south end of the first and runs east 608J feet. The next line given can also be made certain. It is of the same length to half a foot as the second line, and although the point at which it begins is not stated, it is described as running west to the commencing corner. If, therefore, we run a line from that corner due east 608J feet, we find the point at which the last line of the description should commence when it begins to run west. Construing the description in this manner, we then have three certain lines, which make three sides of a rectangle, thus: Q The question then is, will the court supply the fourth or missing side? In the case of Commonwealth v. Roxbury, 9 Gray, 490, where the question was whether a side which had been omitted in the description could be ascertained, three sides being given, Shaw, O. J., said: “ A deed is not to be held void for uncertainty because the boundaries are not fully expressed, when by reasonable intendment it can be ascertained what was considered and understood by both parties to be embraced, and intended to be embraced, in the description. The obvious and legal course, we think, is to lay down a plan on the land according to ascertained boundaries, abuttals and monuments, on these three sides, and thus see where the fourth would come.” While we have no abutments or monuments in this description, we have, as above shown, three fixed lines of courses and distances. Applying this rule to the courses and distances and laying down a plan on the land accordingly, we have the three sides as above described; and all that it is necessary to do, in order to supply the fourth side, is to run a line north and south between the termini of the two lines which are designated in the description as running east and west. In our opinion it would do no violence to the intention of the parties to supply this line. It seems to us to be manifest from the description in the deed that the grantor intended to convey all the land included within these four sides. The fact that the land thus included contains twenty acres, while the deed describes the quantity as ten acres more or less, makes no difference. Where a tract of land is described in a deed by metes and bounds, and as containing so many acres, more or less, the quantity must yield to the metes and bounds. If the measurements contain twenty acres, that number of acres is conveyed to the grantee, although the deed may describe the number as ten, more or less. 3 Washburn, Real Property, *p. 630 (5th ed. p. 427).

The record discloses, moreover, that when the trustees of Mrs. Pease purchased the land from Grubb, they inclosed the tract with a fence on the four sides as above described; that this fence remained there, with the knowledge and acquiescence of the grantor, for several years and until destroyed; and that after its destruction, it was replaced around the whole tract; thus showing the construction put upon the deed by the parties themselves. It is a well settled rule of law that where the description in a deed is susceptible of different constructions, or where the deed contains two inconsistent descriptions, the grantee has a right of election between them, and when he exercises this right, the grantor is bound thereby ; this rule being based upon the familiar principle of construction, that inasmuch as the fault is assumed to be in the grantor, if the terms of the description are uncertain, the deed shall be construed most favorably for the grantee. 3 Washburn, Real Property, *p. 628 (5th ed. p. 422); 2 Am. & Eng. Euc. of Law, 496; Armstrong v. Mudd, 10 B. Monroe, 144, 50 Am. Dec. 545.

The grantees in the deed in question having elected to supply the missing line in the description, by building the fence on this line as well as upon the others, with the knowledge and acquiescence of the grantor, the latter was bound thereby, and the grantees obtained title to the whole twenty acres within the metes and bounds above described.

2. This being the proper construction of the deed in question, and the deed, according to this construction, covering the land sold by Mrs. Pease and her trustees to the plaintiff in error, there was no merit in the contention of the plaintiff’ in error that there was an outstanding title remaining in Grubb or his heirs, in consequence of the alleged ambiguity or uncertainty in the description contained in that deed, or that the deed required to be reformed. The court below, therefore, did not err in refusing to enjoin the action against the plaintiff in error upon his notes for a part of the purchase money, even though the plaintiff' in that action may have been insolvent and a non-resident.

Judgment affirmed.