J.C. Turner Lumber Co. v. Henderson Lumber Co.

• Decision Date: 26 July 1917
• Docket Number: 8190.
• Citation: 93 S.E. 301,20 Ga.App. 682
• Parties: J. C. TURNER LUMBER CO. v. HENDERSON LUMBER CO.
• Court: Georgia Court of Appeals

93 S.E. 301

20 Ga.App. 682

J. C. TURNER LUMBER CO. v. HENDERSON LUMBER CO.

No. 8190.

Court of Appeals of Georgia, Second Division

July 26, 1917

Rehearing Denied Aug. 2, 1917.

Syllabus by the Court.

The verdict was not contrary to law, and is supported by the evidence. There was no error in refusing a motion for new trial based upon the statutory grounds.

Error from Superior Court, Irwin County; W. F. George, Judge.

Action by the J. C. Turner Lumber Company against the Henderson Lumber Company. There was a judgment for defendant, and plaintiff brings error. Affirmed.

Philip Newbern, of Ocilla, and Wilson & Bennett, of Waycross, for plaintiff in error.

Quincey & Rice, of Ocilla, and Eldridge Cutts, of Fitzgerald, for defendant in error.

JENKINS J. (after stating the foregoing facts).

1. If the conveyance which constituted the consideration of the original note was merely of such right, title, and interest in the timber described as belonged to the grantor, then the maker of the note could not plead a failure of consideration by reason of the assertion of the enforcement of a paramount title outstanding against the grantor at the time of the execution of the conveyance. Therefore the first question for determination is whether the intent of the instrument quoted from was to convey the timber itself as described, with a warranty of title thereto, or whether it sought only to pass such right, title, and interest as the grantor had and owned therein. In White & Corbitt v. Stewart & Co., 131 Ga. 460, 62 S.E. 590, 15 Ann.Cas. 1198, it was held:

"If a deed purport to convey the right, title, and interest of the grantor in and to certain described realty instead of conveying the realty itself, the covenants in the deed will be limited to the right or interest which the grantor has in the property. Covenants of title do not apply to land not included in the conveyance."

The principle of law thus laid down appears to be well settled by the decisions of various courts and has been clearly stated by text-book writers. In McDonough & Co. v. Martin, 88 Ga. 675, 16 S.E. 59, 18 L.R.A. 343, the Supreme Court of this state said:

"If the conveyance is only of the grantor's right title, and interest in the land, the scope of it is not enlarged by a general covenant; but such covenant must be limited to fit the subject conveyed"--citing 1 Warvelle on Vendors, 421, § 8; Allen v. Holton, 20 Pick. (Mass.) 458; Sweet v. Brown, 12 Metc. (Mass.) 175 45 Am.Dec. 243; McNear v. McComber, 18 Iowa 12; Gee v. Moore, 14 Cal. 472; Kimball v. Semple, 25 Cal. 440; Bates v. Foster, 59 Me. 157, 8 Am.Rep. 406; Gibson v. Chouteau, 39 Mo. 536; Young v. Clippinger, 14 Kan. 148; Stockwell v. Couillard, 129 Mass. 231.

Thus it clearly appears that the conveyance under consideration cannot be adjudged a warranty deed merely because the covenant of warranty itself is general, and purports to warrant the title to the bargained timber against the claims of all persons whomsoever. As we have already seen, the scope of the conveyance is measured and limited by the terms of the grant itself, and is not to be enlarged by general terms in the covenant of warranty, should they obligate the grantor to defend that which it was not the intention of the instrument to convey. See, also, Coe v. Persons Unknown, 43 Me. 436; Hanrick v. Patrick, 119 U.S. 156, 7 S.Ct. 147, 30 L.Ed. 396; Emeric v. Alvarado, 90 Cal. 444, 27 P. 356. In the McDonough Case, supra, the granting clause of the deed contained this language:

"Said parties of the first part * * * have granted, bargained, sold, remised, conveyed, released, and quitclaimed, and by these presents do grant, bargain, sell, remise, convey, release, and forever quitclaim, unto said parties of the second part, in their full possession and seisin, and to their heirs and assigns, the following lots of land, and all the estate, right, title, interest, use, trust, property, claim and demand whatsoever both at law and in equity, of said parties of the first part of, in, to, or out of all those lots, tracts, or parcels of land," etc.

The deed in that case contained a clause of warranty against those claiming under the grantor, but did not contain the usual covenant of general warranty. The question there involved was whether such a covenant could be implied by a recital contained in the instrument that title was in the grantor, as evidenced by a certain deed; and it was held:

"Where the terms of a deed of conveyance, taking the whole together, show that the instrument is in its essence a quitclaim title, and that the makers intended no warranty except as against themselves and their own acts, a failure of the title to two of the lots out of a great number covered by the conveyance, by reason of the existence of a previous outstanding better title, will be no breach of any implied covenant arising out of a recital of facts or out of the use of words of conveyance; no fraud or intentional misrepresentation being alleged. Nor will the failure of the vendees to get or to hold possession of such two lots, without any fraud or misconduct on the part of the vendors, constitute a defense to an action for the purchase money or any part thereof."

In the opinion in that case it was said that:

"The true rule is to view the recital in the light cast on it by the rest of the deed and give effect to the intention as a consistent whole."

Thus it is that, in construing the instrument now under consideration, the intent is to be ascertained from the language employed in the entire instrument, including the agreement entered into by the same parties and on the same date, which purports to express the meaning and intent of the original instrument. Thus, while it is true that the covenant of general and unlimited warranty could not by and of itself be held sufficient to enlarge the estate conveyed, if the terms of the grant are otherwise plainly restricted, still in arriving at the true intent and meaning of the instrument such a covenant, together with all else contained in the writings, should be weighed and considered together. Bevan v. Muir, 53 Wash. 54, 101 P. 485, 32 L.R.A. (N. S.) 588, 598, and footnote.

In the instrument before us the "right, title, and interest" of the grantor in and to the timber on lot No. 165 is conveyed, and the title thereto is warranted, both as against those claiming under the grantor and as against the claims of all persons whomsoever. In this conveyance a more particular description of the subject-matter of the sale is made by reference to a former recorded deed from Dickson & Dominy to the Garbutt Lumber Company, and in the habendum clause appears this statement:

"It being the intention hereby to transfer, assign, and convey unto the said party of the second part, its successors, heirs, and assigns, all of the rights, powers, privileges, and timber described in the respective conveyances hereinbefore referred to and thereby undertaken to be conveyed, and no more, and excepting herefrom any such timber as may have heretofore been cut and removed."

It would thus seem that the true purpose and intent of the grantor was to sell the "timber described in the respective conveyances hereinbefore referred to," as well as the "rights, powers, and privileges" belonging to the grantor therein, except that it was the purpose of the grantor to make plain his intent not to include in such sale any timber which might have been embraced in the recorded description referred to, but subsequently removed, but only such timber as remained on the premises described at the date of the conveyance to defendant. The light which this clause appears to us to...