Phillips v. Collinsville Granite Co. (State Report Title: Collinsville Granite Co. v. Phillips)
| Citation | 51 S.E. 666,123 Ga. 830 |
| Parties | PHILLIPS v. COLLINSVILLE GRANITE CO. |
| Decision Date | 05 August 1905 |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
That the plaintiff in error did not specify his exceptions to the auditor's report as part of the record to be certified by the clerk and transmitted to this court, but incorporated the exceptions, assigning error separately upon the ruling of the court overruling each of the exceptions to the auditor's report, is no ground for dismissing the writ of error.
The bill of exceptions of the Collinsville Granite Company is not open to the objection that it is argumentative and does not assign error with sufficient clearness and definiteness.
If where a case has been referred to an auditor, he fails to embody in his report a statement of fact material to the case on trial, the remedy of the party injured by this failure is to ask for an order recommitting the report, that the omission may be supplied. The error cannot be attacked by an "exception of law as to matters not appearing on the face of the record."
While the original petition did not pray for a judgment for mesne profits, one of the amendments thereto contained the equivalent of such prayer; and there was evidence to warrant the finding of the auditor on this subject.
Where a deed made by an administrator recited the authority given by the ordinary of the county to sell at public outcry the land covered by the deed, "with the exception of all the granite on said lot of land," but in the granting clause failed to make reference to the granite, it will be presumed that the administrator did not undertake to exceed his authority, and that there was no intention to pass title to the granite.
Where the habendum clause in a deed contained an exception which was not referred to in the granting clause, the exception was not void for repugnancy, if it clearly appears that it was the intention of the parties to make such exception.
Where the ownership of the surface of land and that of the minerals on the land are in different persons, the owner of the surface has an implied right to support, either natural or artificial, for his land.
It is possible for one to own the title to minerals, and yet not have the right to take possession of his property. Thus where the ownership of the surface and the mineral interest are in different persons, and the mineral is of such a character that it can only be worked from above, after removing the surface soil (e. g., granite), the owner of the minerals has no right to remove his property until it has become exposed by the removal of the soil.
A deed conveyed realty, "with the exception of all the granite on said lot of land." Held, the owner of the granite had title to all of that mineral on the land, not merely that which was exposed at the time the deed was made. This was so, regardless of his right to disturb the soil for the purpose of removing the granite. When, from the washing away of the soil or from other causes, other granite became exposed, he had the right to remove it.
When the plaintiff, in an action of "complaint for land," files amendments, which are allowed, praying equitable relief in aid of his petition, and such petition as amended, is duly answered, the proceeding is converted into an equity case, so that, when the same is referred to an auditor, exceptions of fact to his report need not be submitted to a jury unless the judge approves them, and whether they shall be approved is a matter addressed to the sound discretion of the judge. In the present case it does not appear that there was any abuse of discretion.
Where a deed described the property conveyed as containing 90 acres more or less, and being the north half of a designated lot of land, and it appeared that the land lot in question contained more than 200 acres, the description by the number of acres should give way to that by the subdivision of the land lot.
A security deed cannot be the foundation upon which to begin a prescription by seven years' possession under color of title, so long as the possession of the premises is not surrendered to the grantee therein, but still remains in the grantor.
When the grantor in a deed describes the property which he therein conveys as all of his interest, as heir at law of another, in described land, the deed is admissible in evidence in favor of one claiming to derive title to the land from him. What the grantor's interest in the land, if any, was at the time the deed was executed may be shown by other evidence the value of the deed as evidence of title depending upon proof of such interest.
Where the description of the property conveyed in a deed is "one-fourth interest" in a definitely described lot of land, the description is not "so vague and indefinite as to be void," but is an accurate description of a fractional interest in land.
One may show title to a mineral interest in land by showing an unrestricted title to the land wherein the mineral is contained.
An exception of law to an auditor's report does not properly present any question for determination by the court, when it complains of the admission or rejection of evidence, whether the same be oral or documentary, and fails to disclose upon its face, or by an exhibit attached to the exception and referred to therein, what the substance of such evidence was, or to point out where in the auditor's brief of evidence the same may be found. The same rule obtains in an equity case in reference to an exception of law or of fact to a finding of the auditor which involves a consideration of the evidence upon which such finding was based. Armstrong v. Winter, 50 S.E. 997, 122 Ga. 869, and cases cited; First State Bank v. Avera (decided at the present term) 51 S.E. 665.
Where, in a suit for the recovery of realty, the plaintiff relies on a receiver's deed as a link in his chain of title, the fact that the defendant in the case on trial was no party to the action which resulted in the decree under which the receiver sold the property affords no ground for excluding the deed from evidence.
Where the receiver sold such realty under and by direction of a consent decree as the property of the parties to the cause wherein such decree was rendered, the fact that he was not at the time of the sale in possession of all of such property would not render such deed inadmissible in evidence.
The fact that an administrator bid off the property at the receiver's sale, and that it was sold in part as the property of his intestate's estate, did not render the sale and the deed made in pursuance thereof void; and such deed, when offered in evidence in the ejectment suit, could not be collaterally attacked on this ground by the defendant.
Where the question at issue was who owned the granite interest in a certain lot of land, it was not competent for a witness to testify that granite quarried on this lot belonged to the party who had quarried it.
An exception to the admission of testimony which was objected to by the exceptor presents no question for determination, when it fails to disclose what the testimony admitted was, but merely gives the question propounded to the witness.
Where the ground of an exception to the admission of the answer of a witness cannot be understood from the exception itself, but is so vague and uncertain that it cannot be comprehended without searching through the brief of evidence for light upon the subject, it presents no question for the court's determination.
An affidavit made by a party under whom the defendant claimed, while such party was in possession of the land, wherein he admitted that he did not own the "rock or granite" interest therein, was not inadmissible in evidence because the affiant was dead, nor because it was an affidavit used in previous litigation concerning the property to which the defendant in the case on trial was not a party.
Where a party to an action of the present character requests the auditor to whom the case has been referred to personally visit and inspect the premises in dispute, he cannot afterwards object to the impression produced on the mind of the auditor by such inspection.
A mere statement by the auditor that "this personal inspection had considerable influence on the mind of the auditor in arriving at the conclusion and recommendation he hereinafter makes," and that "in his opinion much of the evidence and practically all of the objections to the introduction thereof play a very unimportant part in a proper adjudication of the question submitted," is not a finding by the auditor, and cannot be excepted to as such.
Where the auditor found a particular portion of the premises in dispute in favor of the plaintiff, and described it by metes and bounds, an exception to such finding, upon the ground that "one of his boundary lines is indefinite, uncertain, and impossible to locate," without indicating which boundary line is referred to, is not properly made.
In this suit only the "exposed granite" could be recovered by the plaintiff. Land whereon the granite was not exposed could not be recovered, even though it was not suitable for cultivation.
It is not ground for exception to a decree rendered upon the report of an auditor that the amount of the recovery in favor of the plaintiff therein is less than the evidence before the auditor authorized.
When, in a case of this character, the court upon the prayer of the plaintiff enjoins the defendant from quarrying stone upon the property awarded by the decree to the plaintiff, it is not error to also enjoin the plaintiff from interfering with the property therein awarded to the defendant.
Error from Superior Court, De Kalb County; L. S. Roan, Judge.
Action by the Collinsville Granite Company against ...
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