Harris v. Hull

• Decision Date: 18 September 1883
• Citation: 70 Ga. 831
• Parties: HARRIS v. HULL, executor.
• Court: Georgia Supreme Court

70 Ga. 831

HARRIS v. HULL, executor.

Supreme Court of Georgia.

September 18, 1883

September Term, 1883.

[Jackson Chief Justice, being disqualified, did not preside in this case.]

1.In construing conveyances of land, effect is to be given to every part of the description, if practicable; but 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.What is most material and most certain in a description shall prevail over that which is less material and less certain.

( a. )Courses and distances and computed contents yield to ascertained boundaries and monuments.

( b. )In so far as the charge gave preference to the description in certain deeds referred to in a mortgage and deed in settlement thereof over boundaries specified therein it was error, but it was not error which hurt the plaintiff.

2.The other exceptions made by the plaintiff to the rulings of the court in admitting and rejecting testimony are not well taken; the grounds upon which they were made are not sustained by the facts in evidence.

3.A deed given in payment of a debt, although usury may have entered into the consideration, is not thereby rendered void aliter, where the deed is given to secure a debt.

4.Such of the plaintiff's requests as were refused were properly so.

5.It was error to grant a new trial.

Deeds.Title.Practice in Supreme Court.Charge of Court.Before Judge BOWER.Worth Superior Court.April Term, 1883.

Hull brought suit against Harris on a promissory note for $5,000 with certain credits thereon, made by the defendant to J. S Linton or bearer, on December 28, 1871, and indorsed by Linton.The defendant pleaded failure of consideration in this, that the note was given for the purchase money of certain lands, including land lot 95 in Worth county, and was transferred after due; that he paid on it 4,100; that lot No. 95, of the value of $1,178.50 was, at the time of the sale, under mortgage, of which defendant had no notice; that Linton made a warranty deed to the mortgagee for the land; that the mortgage was also foreclosed, the property sold by the sheriff and bid in by the mortgagee.

The principal question in the case was whether the mortgage and deed under it included lot No. 95 or not.Reference to the following map will explain the positions assumed by counsel:

Plaintiff contended that, according to the description in the mortgages and deed from Linton to Rowley and Craig, the south line ran along the north side of lot No. 89 till it reached No. 95, thence north to the corner of No. 94, thence along the north line of No. 95— thus excluding No. 95.Defendant contended that the south line of the property ran along the north line of Nos. 89 and 96 till it reached No. 144, thence north,— thus including No. 95.— The dark lines show the outline of the property.

The plaintiff introduced the note and closed.Defendant showed in brief, as follows: On November 26, 1868, Linton made to John Craig a mortgage containing the following description of the mortgaged property: " All that tract or parcel of land situated, lying and being in the county of Worth in said state, containing seventeen hundred and sixty (1760) acres, more or less, being lands bought by the said John S. Linton from Jones & Shine, T. M. Monger, J. P. Cox and J. D. Deriso, and bounded on the north by Swift creek, west by Flint river, south by the lands of Deriso and Holliday, and east by the lands of estate of Cox and B. T. Gleaton."On the same day he made to Harmon Rowley a mortgage containing substantially the same description.On February 17, 1871, Linton made to Rowley and Craig a warranty deed in satisfaction of the mortgages.The description in the deed was as follows: " All that tract or parcel of land lying and being in the county of Worth in said state, containing seventeen hundred and twenty acres, more or less, being the lands bought by the said party of the first part from Jones & Shine, T. M. Monger, J. P. Cox and J. B. (D.?)Deriso, and bounded on the north by Swift creek, on the west by Flint river, on the south by the lands of Deriso and Holliday, and east by the lands of estate of Cox and B. F. Gleaton; the property hereby conveyed being the same that was mortgaged to the said parties of the second part on the twenty-sixth (26) day of November, eighteen hundred and sixty-eight (1868)."

(Table Omitted)

TABLE

On December 28, 1871, Linton sold to Harris and gave bond for titles to lots 95, 96, 143, and fractional lots 147 and 148 aggregating 765 acres, more or less, for $5,000.On February 4, 1873, the sheriff made a deed to Rowley, in pursuance of a sheriff's sale under Rowley's mortgage, describing the land as described in that mortgage.

To explain the description contained in the mortgages and deed from Linton, a deed from Jones, administrator, and Shine, administratrix, to Linton, was introduced, conveying lot No. 90, and a half interest in lots and fractional lots Nos. 39, 40, 91, 92, 93, 94; a deed from Jones to Linton to one half of lot No. 39; also a deed from Gilbert, executor of Collier, to Linton to the north half of No. 42, and fifteen acres of the north-east corner of No. 89; also a deed from J. W. Gleaton to Linton, to the north half of No. 41; also a deed from J. P. Cox to Linton to parts of lots Nos. 25 and 26, as appears by the map; also a deed from A. L. Holliday to Linton to the north half of Nos. 96 and 147 and fractional lot No. 146 on which Holliday resided; also a deed from H. Nichols to Linton to fractional lots 147 and 148, and south half of 143 and 96; also a deed from Haiden et al., administrators, to Linton to lot No. 95, containing 202 1/2 acres.

The following parol testimony was introduced by the defendant:

Rouse testified, in brief, as follows: Holliday owned the north half of No. 96, and J. D. Deriso owned the north half of No. 89; these were known as the Holliday and Deriso lands; and in order to make the Holliday and Deriso line, the south boundary of the tract, land lot No. 95 must be included therein.The fraction on the river west of Nos. 95 and 96 belongs to the window Deriso and some children; never belonged to Linton; it runs to the river and cuts off No. 95 and a small part of 94 from the river.Linton held all the land which the witness pointed out as the upper settlement, before the deed to Rowley.Afterwards, in the fall or winter, Linton bought the north half of 96, 143, 147 and 148, from Holliday, and afterward purchased the balance of these lands from Nichols.Some time before the making of the deed made by Linton in settlement of the two mortgages, he was engaged in making a calculation, and told Rouse that he had been trying to see if he could not make 1760 acres of land in his upper settlement as specified in his mortgage to Rowley, without including 95, and that it fell short 40 acres; he also asked Rouse to keep it a secret.

Harris, the defendant, testified, in brief, as follows: The notes sued on were given for the purchase money of the property; the land was valued at $5.00 per acre; the note was transferred after due; all was paid except $1000; he went into possession at the time of the purchase, and is so yet; did not know of the mortgage when he bought from Linton, but thought the title was good.Afterwards Rowley told him that he had bought the land in satisfaction of the mortgage and would evict defendant.Defendant found that he did not have good title, and then bought from Rowley and gave a note for the purchase money at $6.00 per acre; all has not yet been paid.

Rowley testified that the mortgage given by Linton and the deed from him, and the deed from the sheriff included lot No. 95; that Linton's agent pointed out the southern line to him at the time of the transaction, and it ran along the land line between 95 and 90 on the north, and 96 and 89 on the south; that the northern parts of 96 and 89 were known as the Holliday and Deriso lands; and that he never heard of any claim to the contrary until Linton wanted to sell to Harris; that what was called the upper place, and was included in the mortgage, had the Holliday and Deriso lands on the south, and what was called the lower place came up to the southern line of No. 95; that he also had a small mortgage on the lower place, but it was paid off; that he had the upper place surveyed, and it fell short of the amount called for in the mortgage 164 acres.

The defendant introduced in brief, the following evidence:

Hobbs and Smith testified that the Rowley and Craig mortgages were placed in the hands of Hobbs for foreclosure; that Linton filed a plea of usury, and the matter was settled by Linton's making an absolute deed to the mortgaged premises, but in order to protect him against any judgments against Linton, Rowley was to have the right to foreclose, which he did.

Linton testified that lot number 95 was not included in the mortgage or the deed made in settlement of it; that he pointed out the lines to Rowley and Craig and went to...