137 Ga. 308 | Ga. | 1912
E. A. Hill sued J. B. Thompson for breach of warranty. It appeared that the defendant had a tract of land surveyed into lots, and had a sale thereof. On June 23, 1887, he executed to Y. H. Thompson a deed, which was recorded on September 1, 1887. The recited consideration was $171. The description of the land conveyed was as follows: “All that tract or parcel of land situated, lying and being in the town of Austell, Georgia, and being part of Land Lot 140 in the Eighteenth District of Cobb County, Georgia, commencing at a point on Hotel Street two hundred and eight (208) feet from the Southeast corner of Hotel and Central Streets; thence East two hundred and twenty-three (223) feet to Pine Street; thence South along Pine Street one hundred and four (104) feet; thence West two hundred and twenty-three (223) feet to Hotel Street; thence North along said street one hundred and four (104) feet to the beginning.
“Also beginning at a point forty-nine (49) feet from the Southwest corner of Thompson Avenue and Central Street; thence West two hundred and twenty-nine and one half (229%) feet to a twenty-foot alley; thence South along said twenty-foot alley ninety-eight (98) feet; thence East two hundred and twenty-eight (228) feet to Thompson Avenue; being lots numbered 65, 76, 124, and 125 of the J. B. Thompson property, as per plat No. 2 exhibited at auction sale of same by Sam. W. Goode & Company on June 23rd, 1887.”
On July 22, the same grantor executed to the present plaintiff a deed, which was recorded on October 9. It recited a consideration of $70, and described the land conveyed as follows: “All that tract or parcel of land lying and being in the town of Austell, Georgia, and 'being part of Land Lot 140 in the Eighteenth District of Cobb County, Georgia, and more particularly described as follows, to wit: Commencing at a point on Hotel Street two hundred and sixty (260) feet from the Southeast corner of Hotel and Central Streets; thence East two hundred and twenty-three (223) feet .to Pine Street; thence South along Pine Street fifty-two (52) feet; thence West two hundred and twenty-three (223) feet to Hotel Street; thence North along said Hotel Street fifty-two (52) feet to the point of beginning; and being lots Nos. 66 and 75 of
Y. H. Thompson died, and one who inherited the property conveyed the land described in the first deed set out above to one Tom Jones. The latter took possession. Hill, the grantee in the second deed, brought suit in 1903 to recover the land described in his deed. A verdict and judgment went against him in 1905. In 1908 he'brought suit against his grantor, alleging a breach of warranty. On the trial the court directed a verdict in favor of the plaintiff. The defendant excepted.
Out of this disposition to give effect to an instrument, where practicable, doubtless arose the maxim, “Falso demonstratio non nocet cum de corpore constat” (mere false description does not vitiate, if there be sufficient certainty as to the object). Characteristic cases within the rule, as strictly applied, were those where the description, so far as it was false, applied to no subject, and, so far as it was true, applied only to one subject. But in pursuance of the current of modern authority above mentioned, it has become settled law that if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken, although it would be possible to apply them to a subject-matter so as to enlarge
The rule in regard to monuments' is not a mere arbitrary dictum, but is founded on reason and experience. As grants and conveyances are usually made with reference to an actual view of the premises, this is treated as presumptively the ease. Monuments are considered stable and certain. They are visible things, existing on the ground, indicating the extent of the land and the direction of its boundaries. Those who examine the ground can see the monuments indicating the direction of its lines and the extent of its contents. Courses and distances laid down in a deed or plat, or in field notes, are merely descriptive of the land as it is. Hence, if the deed describes the land by monuments, this will control calls for courses and distances descriptive of the same property. As natural monuments are likely to be more permanent and notorious in character than artificial monuments erected by an owner, recourse is had to the former rather than to the latter, in case of conflict.
In Rutherford v. Tracy, 48 Mo. 325 (8 Am. R. 104), the language conveying the premises was as follows. “Lot No. 3 in block
In a note to Heaton v. Hodges, 30 Am. D. 731 (14 Me. 66), that excellent annotator, Mr. A. C. Freeman, says (p. 740) : “There is no magic in a monument which will give it invariable control in such cases. It controls only because it is regarded as more certain than a given course or distance. If it should, in a given case, be less certain, the rule would fail with the reason for it, and the monument would yield to the course and distance, and an artificial monument will yield more readily than a natural one.” In White v. Luning, 93 U. S. 514 (23 L. ed. 938), it was held that “The rule that monuments, natural or artificial, rather than courses and distances, control in the construction of a conveyance of real estate, will not be enforced, when the instrument would be thereby defeated, and when the rejection of a call for a monument would reconcile other parts of the description, and leave enough to identify the land.” In Higginbotham v. Stoddard, 72 N. Y. 94, 98, a conveyance described a lot in a village as “on the southerly side of Madison street, . . being ten feet on Madison street, thirty-two feet in rear on the northerly side of the mill-race, and one hundred feet in depth from front to rear, containing twenty-one hun
If the rule .as to monuments is not arbitrary and without exception, but will yield, in a given case, where it appears from; the deed to be less certain than other descriptions, a reference to a number on a plat is not sacrosanct, regardless of everything else in the deed. While it is often, indeed generally, of controlling force, where it indicates the main intent as to the land to be granted, the rule that it will control is not inflexible. In Summerlin v. Hesterly, 20 Ga. 689 (65 Am. Dec. 639), an entry of levy by a sheriff on several lots of land described one of them as being “fractional lot, whereon John Smith now lives, No. 81, in the 4th district of originally Coweta, now Heard County.” In an action of ejectment one of the parties claimed under the sheriff’s sale. It was shown by parol that the fractional lot on which John Smith lived at the time of the sheriff’s entry was the lot in suit; and that although the number of it was not that stated in the entry of' levy, but was 189, there was no such lot as that stated in the levy which was a fractional lot; or that, if such lot was a fractional lot, it was not occupied by John Smith. The reference in the entry of levy and'
The plat was introduced in evidence, and there is brought to this court what is stated to be so much of it as relates to the lots in controversy. It shows a block divided by a line running north and south through the center and by lines running east and west, with surrounding streets on three sides and an alley on the fourth. Bach lot so represented has entered on its front line the figures 52. A number also appears entered in the middle portion of the lot.
This is not an effort to reform the deed, nor is it a controversy between the first grantor and the grantee. The second grantee brought suit against the first to recover the two lots mentioned in his deed, but a judgment was rendered against him. This was not conclusive upon the grantor, as he does not appear to have been vouched. The second grantee, having lost the lots conveyed to him, now sues the common grantor for breach of warranty. Upon the facts of the case, we think he should recover. The description in the first deed of the land granted is 'clear, definite, and exact. It shows a reference to measurements on the land itself, by reference to the street corner, the beginning point of the lot conveyed, the side streets, and the frontage on each. It is followed by a description of other land, as a part of which there is a reference to a plat. But we do not think that this is sufficient to cut in half the description of the first lot conveyed. In most of the cases where the reference to lots by number or by name prevailed, the effort was to decrease the amount included in the lot granted, by reason of an added description by courses and distances. If resort is had to the rale of construction favorable to the grantee, or to that relative to utterly inconsistent clauses, it leads to the same conclusion.
Judgment affirmed.