179 Ga. 831 | Ga. | 1934
Claudius L. Thurmond, Mrs. Bessie Cooper, Adell T. Thurmond, and Mrs. Roberta Dunson brought their petition for partition against W. L. Thurmond, alleging that they
“Georgia, Madison County. This indenture made the 27th day of January, 1902, between J. E. Hawks and W. L. Thurmond and D. S. Thurmond, all of the county and State aforesaid, witnesseth: That the said J. E. Hawks, for and in consideration of the natural love and affection he has for his daughter, said D. S. Thurmond, hereby gives, grants, and conveys to the said D. S. Thurmond,'her heirs and assigns, 25 acres in a tract of land lying in said county, which will be more fully described hereinafter; and in consideration of the sum of three hundred and eighty-seven dollars, the receipt whereof is hereby acknowledged, does sell and convey unto the said "W. L. Thurmond, his heirs and assigns, the remainder of a certain tract of land in said county, to wit, 32-1/4 acres, more or less, on the Harmony Grove public road, and adjoining lands of L. B. Hawks, B. O. Williams, B. B. Chandler, D. E. Chandler, and J. E. Hawks, the whole tract bounded as follows: Beginning at a rock near graveyard, thence S. 17 E. 18.70 to a rock, thence S. 68 W. 25.92 to a rock on road, thence N. 17-1/2 W. 3.43 to a rock, ■thence S. 63 W. 3.73 to a rock, thence N. 34 W. 15.50 to a rock, thence N. 61 E. 9.08 to a stump in rock dam, thence N. 68 E. 25.88 to the beginning corner, containing 57-7/10 acres, more or less, together with all the rights and privileges thereunto belonging, in fee simple. And the said J. E. Hawks, his heirs, executors, and administrators, the title to the premises aforesaid will forever warrant and defend to the said W. L. Thurmond and D. S. Thurmond, their heirs and assigns, against the lawful claim of all other persons. In witness whereof the said J. E. Hawks has hereunto set Ms hand and seal the day and year aforesaid.
Jonah E. Hawks (L. S.)
“Signed, sealed, and delivered in the presence of L. P. Crawford. H. H. Tolbert, J. P.”
The defendant filed his plea in which he denies that he and the plaintiffs are tenants in common as to the entire tract, but admits that they are tenants in common as to the 25-acre tract. He alleges that he is the owner of 32-1/4 acres, and demes that the 32-1/4 acres and the 25 acres deeded to his wife are undivided. He denies that the plaintiffs are entitled to a one-fourth interest in the 25-acre tract, but says that he is an heir.of Ms wife and entitled
On motion certain paragraphs of the plea were stricken; and the court, without the intervention of a jury, heard and passed upon the issues made by the pleadings, and rendered a judgment construing the deed as creating a tenancy in common, finding that the lands were incapable of division in kind, and ordering a sale thereof. To these rulings the defendant excepted.
A motion was made to dismiss the writ of error, for the reason that the bill of exceptions names “Claudius L. Thurmond et al.” as defendants in error, whereas there were four parties named as plaintiffs in the court below, and the acknowledgment of service entered on the bill of exceptions specially reserves the right to move to dismiss because proper parties were not made. As was stated by Justice Hines in McEachin v. Jones, 165 Ga. 403 (140 S. E. 878) : “Before the passage of the act of 1911, the denomination of parties who are necessary parties defendant in error by the words et al., following the name of one who is a proper defendant in error, rendered the bill of exceptions fatally defective for want of necessary parties. By the act of 1911 this defect is amendable, and not fatal.” See also Bennett v. Wilkes County, 164 Ga. 790 (139 S. E. 566). In the instant case, the acknowledgment of service having been signed by the attorneys who represented all the parties plaintiff in the court below, even though made with express reservation, and an amendment curing the defect having been tendered in this court, the motion to dismiss is overruled. The ruling in Ray v. Hardman, 146 Ga. 718 (92 S. E. 211), in view of the proffered amendment, is not a binding proposition of law as to this case.
Paragraph 7 of the plea seeks to set up a parol agreement of partition. A partition of land by agreement is such a contract as must, under the statute of frauds, be in writing. Smith v. Smith, 133 Ga. 170 (5) (55 S. E. 414). There being no sufficient allegations as to the taking of possession of respective por
The deed involved in the instant case is not attacked as to validity; and its construction, including the determination of the quantum of estate conveyed, was a question of law fox the court. Heatley v. Long, 135 Ga. 153 (68 S. E. 783).
In the construction of a deed, the cardinal rule is to ascertain the intention of the parties. If that intention be clear and it contravenes no rule of law, it shall be enforced, irrespective of technical or arbitrary rules of construction. Civil Code (1910), § 4366; Huie v. McDaniel, 105 Ga. 319 (31 S. E. 189); Gilreath v. Garrett, 139 Ga. 688-690 (77 S. E. 1127). “Where it can be gathered from the words employed in a deed that the intention of the grantor was to convey the whole of the tract owned by him, even a vague description of the same will suffice, if by competent parol evidence its precise location is capable of ascertainment and its identity can be established.” Tumlin v. Perry, 108 Ga. 520 (34 S. E. 171); Crawford v. Verner, 122 Ga. 814 (50 S. E. 958). The doctrine “id certum est quod certum reddi potest” applies to the description of land conveyed in a deed. Leverett v. Bullard, 121 Ga. 535 (49 S. E. 591); Swint v. Swint, 147 Ga. 467 (2) (94 S. E. 571). With these basic principles in mind, let us look to the terms and wording of the deed in question. Its provision, in so far as description is concerned, is as follows: “35 acres in a tract of land lying in said county, which will be more fully described hereinafter; and in consideration of the sum of three hundred and eighty-seven dollars, the receipt whereof is hereby acknowledged, does hereby sell and convey unto the said W. L. Thurmond, his heirs and assigns, the remainder of a certain tract of land in said county, to wit, 33-1/4 acres, more or less, on the Harmony Grove public road and adjoining lands of L. B. Hawks, B. O. Williams, B. B. Chandler, D. E. Chandler, and J. E. Hawks, the whole tract bounded as follows: Beginning at a rock near graveyard, thence S. 17 E. 18.70 to a rock, thence S. 68 W. 35.93 to a rock on road, thence N. 17-1/3 W. 3.43 to a rock, thence S. 63 W. 3.73 to a rock, thence N. 34 W. 15.50 to a rock, thence N. 61 E. 9.08 to a stump in rock dam, thence N. 68 E. 35.88 to the beginning corner, containing 57-7/10 acres, more or less.” It can readily be seen that the whole tract of 57-7/10 acres can be easily identified by
Judgment reversed.