Nicholls v. Popwell

• Decision Date: 31 March 1888
• Citation: 80 Ga. 604
• Parties: Nicholls et al. vs. Popwell.
• Court: Georgia Supreme Court

80 Ga. 604

Nicholls et al. vs. Popwell.

Supreme Court of the State of Georgia

MARCH TERM, 1888.

Demurrer. Practice. Contracts. Jurisdiction. Evidence. Verdict. Decree. Exceptions pendente lite. Before Judge Adams. Wayne superior court. March adjourned term, 1887.

The description of the lands in the original bill is as follows: "A certain tract, lot, body or parcel of land, with the appurtenances thereunto belonging, situate, lying and being in said county of Wayne, and as well extending over into the county of Glynn and said State, and being immediately on the line of said two counties of Glynn and Wayne, and containing fifteen hundred acres of land, be the same greater or less, and commonly and well known as the 'Palmer settlement' and 'Palmer lands, ' adjoining and hereinafter particularly mentioned and accurately described, and as well the inheritance in fee simple thereto;" and the further description there is: " Said premises were bounded as follows, to-wit: Said premises, with the appurtenances, were bounded on the west by the lands of J. R. Allison, H. L. Covington, the estate of Mc- Intosh and the Satilla creek; north by aline running east and west, and far enough to the north to include within said premises a spot of ground well known and readily identified as the \'old saw mill site, \' the same being the spot whereat one Dempsey B. Palmer—after whose name said premises derive their appellation of Palmer place and Palmer land adjoining—once operated a steam saw mill, and as well by parcels of land known as the Wiggins land, and also College Place, to which the tracts in question, it was agreed, should and did extend; east by a line running northwardly and southwardly, and far enough to the eastward as to reach said College Place, and include another parcel of land there well known as Gap Field, or Gap Branch, and also by said College tract and lands of Francis D. Scarlett; and south by aline running eastwardly and westwardly, and far enough to the southward as to include certain negro settlements of Abner Wright, Steve Williams and Bella Berrie (now Ed Cummings), and the land of Madison Lowe and of the old Mcintosh tract, now claimed by the Mcintosh heirs at law; said tract was to run down to said Satilla creek, so as to include the place where one Manigo Wiggins at that time kept a store and bar-room.....Said tract, body, piece or parcel of land has and is embraced within the following metes, courses and distances, as follows, to-wit: Commencing on the extreme northwest corner of said Palmer settlement and lands adjoining, and at the place where said tract corners on to the lands of J. R. Allison and W. M. Wiggins, and running thence north 80° east fifty chains to a stake on the old Fort Barrington road; thence south along said road and College lines 42 chains to a stake east of said road; thence southwardly along College lines 40° west 162 chains to a stake east of Gap Branch or Gap Field; thence southwardly 11° west, and along the line of Francis D. Scarlett\'s land to a stake on the line of Madison Lowe\'s land; thence west 6 ¹/₂ chains to pine on edge of a pond; thence south 6 chains to stake; thence south 75° westalong Madison Lowe\'s land 42 chains to stake; thence north along the Mcintosh land line 42 chains; thence north 15° west along line of Mcintosh lands 25 chains to pine; thence south 75° west along Mcintosh land 116 chains to Satilla creek; thence up said creek to a line north of said road; and thence south 67° west to stake north of said road; and thence north 195 chains to initial point. \' All of which will appear by reference to the plat hereto annexed.\' " See record, page 30.

The bill recites further: "Said lines and boundaries were the ones agreed on between him and said respondent, and that they sold to him all the land with the appurtenances within said boundaries, " and further, " said respondents guaranteed and agreed that said tract did embrace one thousand acres, and while these titles only set out one thousand acres, yet they were sure there was far more than that, for their titles showed said boundaries, and they felt certain said boundaries contained far more acres, and whatever number of acres in the same they would make him deeds as mentioned, embracing the Palmer settlement and lands adjoining, whereon is situate the old Palmer residence, and stating and giving the said boundaries "

The amendment says that the complainant amends the bill in the matter of description, and then recites, " the Palmer place and the Palmer lands adjoining are the same lands described in the exhibits to the answer of said respondent, Sylvester Mumford, filed in this court on March 17th, 1885, that is to say: The deed from John N. Goodbread, deputy sheriff of Wayne county, Georgia, to said Sylvester Mumford and John 0. Nicholls, dated the 2d of March, 1875, and recorded September 23d, 1875; and the other deed dated March 4th, 1877, from John N. Goodbread, sheriff of said county, to them, said Sylvester Mumford and John C. Nicholls, and recorded May 15th, 1877; and a full description of which as contained in said last mentioned deed is as follows: All that lot of land situate, lying and being in said county of Wayne and State of Georgia, four miles below the village of Waynesville therein, and known as the Dempsey B. Palmer place, and bounded as follows North by Brown\'s land, south by Dr. Jelks\' land, and west by Flowers\' land, situated in the third district of said county of Wayne and containing three hundred and thirty acres more or less; which described tract your orator avers is the Palmer place proper; and a full description of which as contained in said first mentioned deed is as follows: All of those certain tracts of land, to-wit: One tract containing one hundred and fifty acres, granted to Samuel S. Morgan, November 22d, 1836. One tract containing six hundred and thirteen acres, granted to J. R. Richard on the 14th of November, 1859. One tract containing seven hundred acres, known as the John Brown land. One tract of five hundred acres granted to William Ratliff and conveyed by him to Dempsey B. Palmer, and known as the William Ratliff lands. One tract containing two hundred acres, lying near the ford of Satilla creek and adjoining the late homestead place of Dempsey B. Palmer, and deeded to him by Robert Stafford. All of said tracts of land lying and being in the third district of said county of Wayne. And which last described tracts your orator avers are the lands adjoining said first described tract, and are the Palmer lands adjoining the Palmer settlement. And your orator avers that said described lands are the lands of Dempsey B. Palmer, purchased by said respondent, and are the lands which they agreed to convey to him as stated in his original bill, and are the lands known as the Palmer settlement or place and Palmer lands adjoining. And said complainant says further that said lands described in this amendment are the same said lands mentioned and described in said original bill."

The jury found this verdict: " We the jury find for complainant, giving boundaries particularly described in complainant's bill and amendment thereto."

In connection with the above the decision sufficiently states the facts of the case.

S. W. Hitch, by Harrison and Peeples, for plaintiffs in error.

Courtland Symmes and J. H. Lumpkin, contra.

Simmons, Justice.

Popwell filed his bill in Wayne superior court against Sylvester Mumford, of Wayne county, and John C. Nicholls, of Pierce county; wherein he alleged, in substance, that he had purchased a certain tract or tracts of land from the respondents, for the sum of $850; that he was to pay in cash $700, and to pay $150 when Nicholls should make him a warranty deed to his half-interest in the land, and...