Johnson v. McKay

• Decision Date: 10 December 1903
• Citation: 45 S.E. 992,119 Ga. 196
• Parties: JOHNSON v. McKAY.
• Court: Georgia Supreme Court

45 S.E. 992

119 Ga. 196

JOHNSON v. McKAY.

Supreme Court of Georgia

December 10, 1903

Syllabus by the Court.

1.A description in a mortgage of a tract of land as the "Zachariah Emerson place, part of lots No. 125 in the 11th district" in a named county, "one part number not known," and containing a specified number of acres is not so indefinite and uncertain as to render the mortgage void.Extrinsic evidence may be resorted to to identify the land.

2.The same is true of a description of a tract of land as "The Thomas Bazemore Place," containing a given number of acres and adjoining lands of named persons.

3.Where land is described as the Zachariah Emerson place "part of lots number 125" in a given district "one part number not known," and it appears that no part of the place named is embraced in lot 125, the lot number may be rejected as surplusage, under the maxim, "Falsa demonstratio non nocet."

4.Where extrinsic evidence is necessary to identify land described in a mortgage which has been foreclosed, and a claim interposed to the levy of the mortgage execution, the burden is on the plaintiff in execution to properly identify the land by extrinsic proof.

5.Inasmuch as there is great doubt whether this burden was carried in the present case, and, if so, whether the prima facie case made by the plaintiff was not rebutted, the judgment granting the claimant a second new trial will not be disturbed.

Error from Superior Court, Jones County; H. G. Lewis, Judge.

Action by J. C. Johnson against Julia McKay to foreclose a mortgage.On levy of execution H. A. McKay, executor of George W. F. McKay, interposed a claim.Verdict for plaintiff.From an order granting a new trial, he brings error.Affirmed.

Hardeman & Moore and R. N. Hardeman, for plaintiff in error.

Johnson & Johnson, for defendant in error.

COBB J.

On October 1, 1893, Mrs. Julia McKay executed to J. C. Johnson a mortgage upon land described as follows: "All that tract of land in Jones county, Georgia, containing one hundred and fifty-three (153) acres known as the Zachariah Emerson place, part of lots No. one hundred and twenty-five (125) in the eleventh (11) district, one part No. not known."Also: "The Thomas Bazemore place, containing one hundred and ninety-six (196) acres, more or less, joining the lands of Sarah Emerson, Elisha Owens, Madison T. Bazemore, and H. D. McKay."The mortgage was foreclosed, and the execution was levied.The execution followed the description in the mortgage.H. A. McKay, as executor of the will of George W. F. McKay, interposed a claim to the property, and at the trial the property was found subject.The presiding judge, Hon. F. C. Foster, granted a motion for a new trial filed by the claimant.At the second trial the property was again found subject, and another new trial was granted the claimant by Hon. H. G. Lewis, who presided at the trial, upon a motion which contained the grounds that the verdict was contrary to law and the evidence, and also certain special grounds.At both trials the claimant introduced in evidence the record of a suit for land, and of the decree therein, brought by Mrs. Julia McKay against George W. F. McKay, in which title to certain land was decreed to be in the defendant in the suit.It is claimed that this decree covered the land now in controversy.The order of Judge Lewis granting a new trial was as follows: "It is ordered by the court that the verdict and judgment complained about be set aside and a new trial granted, because the evidence shows that the land claimed is covered and embraced by and in the decree rendered in case of Julia McKay against G. W. F. McKay, which was used in evidence; and because the lands claimed were not properly specified and described in the mortgage so as to make them capable of identification, and uncontradicted evidence showing that no part of lot 125 described in the mortgage was included therein."To the granting of this order the plaintiff in execution excepted.

1-3.

We are constrained to differ with his honor of the trial court in his opinion that the description of the two tracts of land in the mortgage was so uncertain and indefinite as to render the mortgage void.The description standing alone, unaided by extrinsic evidence, is unquestionably insufficient.But the rule applicable in such cases is, "That is certain which is capable of being made certain;" and the description will be sufficient if it affords means of identifying and ascertaining the land intended to be conveyed.SeeMartindale on Conveyancing, § 87;Andrews v. Murphy, 12 Ga. 431;2 Devlin on Deeds(2d Ed.) § 1012.A general description, such as the "Emerson Place," or the "Thomas Bazemore Place," is sufficient.McAfee v. Arline,83 Ga. 645, 10 S.E. 441 (a);Polhill v. Brown,84 Ga. 338, 10 S.E. 921 (2);2 Devlin on Deeds(2d Ed.) § § 1012, 1013.In such a case parol evidence may be resorted to to show what land was intended to be conveyed.SeeBroach v. O'Neal,94 Ga. 474, 20 S.E. 113 (3);Derrick v. Sams,98 Ga. 397, 25 S.E. 509, 58 Am.St.Rep. 309 (1);3 Wash. Real Prop.(6th Ed.)§ 2320;Martindale on Conveyancing(2d Ed.) § 88.It is true, as stated in the judge's order granting a new trial, that the uncontradicted evidence shows that the Emerson place did not embrace any part of lot No. 125.But this does not vitiate the mortgage.The general description of the property as the "Emerson Place" was sufficient, and a particular description repugnant to this general description is to be treated as surplusage, under the maxim, "Falsa demonstratio non nocet."Mart. Conv.(2d Ed.) § 96;3 Wash. Real Prop.(6th Ed.)§ § 2317, 2321;Harris v. Hull,70 Ga. 831 (1);Boggess v. Lowery,78 Ga. 539, 3 S.E. 771, 6 Am.St.Rep. 279;Rogers v. Rogers,78 Ga. 688, 3 S.E. 451 (2);Polhill v. Brown,84 Ga. 338, 10 S.E. 921 (2);2 Dev.Deeds(2d Ed.) § 1016.These authorities are directly in point, and show that a mere error in the number of the lot will not vitiate the mortgage, there being a general description therein from which the property can be identified.Had the property been described solely by lot number which was given incorrectly, reformation of the instrument would have been necessary, but here the lot number may be...