McAfee v. Arline

• Decision Date: 11 November 1889
• Citation: 10 S.E. 441,83 Ga. 645
• Parties: MCAFEE v. ARLINE et al.
• Court: Georgia Supreme Court

10 S.E. 441

83 Ga. 645

MCAFEE v. ARLINE et al.

Supreme Court of Georgia

November 11, 1889

Error from superior court, Johnson county; HINES, Judge.

A. F Daly, for plaintiff in error.

W. R Daly, for defendants in error.

BLANDFORD J.

A writ of execution against Ephraim Hightower was levied upon a certain tract of land, containing 205 acres. John McAfee interposed a claim to the same, and upon the trial of the case McAfee relied upon a deed, executed upon the 13th day of January, 1886, made by J. M. Hightower to said McAfee, which contains this exception: "Except the dower of fifty acres, as fully described in the deed given the Corbin Banking Company the tract or parcel of land hereby conveyed contains all the dwellings and gin-house, except the old, original dwelling-house." A verdict was had in favor of the claimant, and the court granted a new trial as to 50 acres of the tract levied on; and to this decision the claimant excepted, and assigns error thereon.

The terms "exception" and "reservation" are often used in deeds indiscriminately; and sometimes what purports to be a reservation has the force of an exception. A reservation is a thing issuing out of the land granted whereas an exception is a part of the land granted. This clause of the deed mentioned is strictly an exception. It is urged before us that, inasmuch as the exception in this deed did not define the boundaries of the 50 acres in any way, the same was void, and that the court erred in granting this new trial. Where the description is uncertain, reference may be made to prior deeds conveying the same land, and an entire tract of land known by a general name may be described by such name. If it is not possible to ascertain the precise 50 acres of land mentioned in the exception, then the party owning the entire tract, with the exception of the 50 acres, would be tenant in common with the party owning the 50 acres so excepted. The error, if any, committed by the court was in not granting a new trial as to the whole case, under the evidence, but, inasmuch as there is no exception to the refusal of the court to grant a new trial as to the whole of the land levied on, it is unnecessary for us to notice the refusal of the court so to have granted. A grantor described the land as "my homestead farm, situated in Buckfield," and described the various parcels of which it was composed, and gave a description of the last parcel as ...