Stewart v. Latimer

• Decision Date: 08 June 1944
• Docket Number: 14835,14844.
• Parties: STEWART et al. v. LATIMER et al. LATIMER et al. v. STEWART et al.
• Court: Georgia Supreme Court

30 S.E.2d 633

197 Ga. 735

STEWART et al. v. LATIMER et al.

LATIMER et al. v. STEWART et al.

Nos. 14835, 14844.

Supreme Court of Georgia

June 8, 1944

Syllabus by the Court.

1. Where, in an action for the reformation of deeds and recovery of a described tract of land, the petition contained various allegations as to actual intent of the parties to such deeds an amendment by which the plaintiffs sought in general terms to withdraw 'any and all parts of said petition which asks that the following deeds be reformed' was subject to objection as being too vague and indefinite as to what parts of the petition the plaintiffs intended to strike.

2. In construing a deed to land, that which is most material and most certain should prevail over that which is less material and less certain, and distances and computed contents should yield to ascertained boundaries and monuments.

(a) A deed described the land conveyed as, beginning at a point 216 feet east of the southeast corner of a designated lot as shown on a recorded map, and 'from said point running along the northerly side of Oakwood Street 100 feet to the east side of a culvert; thence northerly 178 feet, more or less, to the line of the Orr property; thence in a westerly direction along the line of the Orr property 100 feet; thence in a southerly direction 178 feet, more or less, to the beginning point on Oak Street; being a lot 100 feet wide off the easterly side of the property described' in a certain security deed, the description in which security deed is not shown. Held, that the deed unless reformed should be taken to convey a tract in the form of a parallelogram, with its southern boundary line beginning and ending at the points specifically designated, even though the distance should on measurement prove to be 118 feet instead of 100 feet as stated in the deed.

(b) Under such a deed, it would not be competent to allege and prove that there was an oral agreement between the grantor and the grantee made before or contemporaneously with its execution, fixing metes and bounds different from those specifically set forth in the deed itself.

(c) Under the preceding rulings as applied to the instant case wherein the plaintiffs by their petition as amended sought as in an action at law to recover a strip of land 18 feet in width, upon the theory that the southern boundary line should be 100 feet as stated in he deed, instead of 118 feet according to its actual length as later discovered, the petition as amended did not state a cause of action, and the court erred in overruling the general, demurrers of the defendants.

3. Where this court has before it both a main and a cross bill of exceptions, and the latter presents a question which is controlling upon the case as a whole, it will be disposed of first, and if the judgment excepted to therein is reversed the writ of error issued upon the former will be dismissed.

(a) Under this rule, the judgment complained of in the cross-bill of exceptions is reversed, and the writ of error upon the main bill of exceptions is dismissed.

Henry A. Stewart and Mrs. Lula Stewart filed suit in the superior court of Floyd County against W. P. Latimer, and Citizens Federal Savings and Loan Association as successor to Citizens Building & Loan Association, a corporation, seeking reformation of two deeds and recovery of a strip of land 18 feet wide on the south and extending northward a distance of 178 feet, more or less, to a designated line. The defendants filed separate demurrers, which the court overruled, and they excepted pendente lite. Before the demurrers were overruled the plaintiffs amended their petition by withdrawing 'any and all parts' that sought reformation (amendment, paragraph A-1), by striking the specific prayer for that relief, and by adding several allegations. The defendants separately moved to disallow paragraph A-1 of the amendment, upon the ground it was too vague and indefinite as to the portions of the petition which the plaintiffs intended to strike. To the order allowing the amendment over such objection, the defendants excepted pendente lite. The defendants also filed separate demurrers to the petition as amended, the demurrer of Latimer being both general and special, and the demurrer of the Citizens Federal Savings & Loan Association being only general. The court overruled these demurrers, and the defendants again excepted pendente lite. The case proceeded to trial on the petition as amended. After the plaintiffs had introduced evidence and rested, the court ordered a nonsuit, and to this judgment the plaintiffs excepted. The defendants sued out a cross-bill of exceptions, assigning error upon their several exceptions pendente lite and upon the rulings therein complained of.

Omitting those parts of the original petition which referred specifically to reformation, the petition as amended contained the following allegations:

3. On April 1, 1930, Mrs. Lula Stewart, one of the plaintiffs, purchased from Mrs. Grace Vassiere the following described property: All that tract or parcel of land in what is known as Summerville Park, and now in the fourth ward of the City of Rome, Floyd County, Georgia, and being described as 'beginning at a point 150 feet east of the southeast corner of lot No. 6 of the City Land Company's addition to Summerville Park, shown on the map of said addition recorded in the office of the clerk of the superior court of Floyd County, Georgia, in plat book 1, page 157, and from said point running along the northerly side of Oakwood Street 168 feet, more or less, to the east side of a culvert; thence northerly 178 feet, more or less, to the line of the Orr property; thence in a westerly direction along the line of the Orr property 168 feet, more or less, to the J. E. Camp or Cone property; thence in a southerly direction 178 feet, more or less, to point of beginning, on Oakwood Street.'

4. On April 26, 1933, Mrs. Lula Stewart conveyed to the Citizens Building & Loan Association a part of the land above described, the deed from her to the Association describing the property so conveyed as follows: All that tract of land in what is known as Summerville Park, and now in the Fourth Ward of the City of Rome, Floyd County, Georgia, and being described as, 'beginning at a point 216 feet east of the southeast corner of lot No. 6 of the City Land Company's Addition to Summerville Park, shown on the map of said addition recorded in the office of the clerk of the superior court of Floyd County, Georgia, in plat book 1, page 157, and from said point running along the northerly side of Oakwood Street 100 feet to the east side of a culvert; thence northerly 178 feet, more or less, to the line of the Orr property; thence in a westerly direction along the line of the Orr property 100 feet; thence in a southerly direction 178 feet, more or less, to the beginning point on Oakwood Street; being a lot 100 feet wide off the easterly side of the property described in a security deed from Mrs. Lula Stewart to Citizens Building & Loan Association, recorded in deed book 142, page 294.'

5. On June 24, 1941, Citizens Federal Savings & Loan Association, successor to Citizens Building & Loan Association, conveyed to the defendant Latimer the tract of land that it had acquired from Mrs. Lula Stewart by the deed last mentioned, the description being identical.

6. On December 8, 1938, Mrs. Lula Stewart, by a deed, reciting love and affection as the consideration, conveyed to Henry Stewart an undivided one-half interest in the following described land: All that tract of land in what is known as Summerville Park, and now, the fourth ward of the City of Rome, Floyd County, Georgia, and being described as, 'beginning at a point 150 feet east of the southeast corner of Lot No. 6 of the City Land Company Addition to Summerville Park, shown on a map of said addition recorded in the office of the clerk of the superior court of Floyd County, Georgia, in plat book 1, page 157, and from said point running along the northerly side of Oakwood Street 66 feet, more or less, to the property now owned by the Citizens Federal Savings & Loan Association, thence northerly 178 feet, more or less, to the line of the Orr property; thence westerly along the line of the Orr property 66 feet, more or less, to the property of Mrs. Virginia Cone; thence southerly along the line of the Cone property a distance of 178 feet, more or less, to the beginning point on Oakwood Street.'

11. Petitioners show that the deed from Mrs. Lula Stewart to Citizens Building & Loan Association, and the deed from its successors to W. P. Latimer 'were both drawn by agents and officers of Citizens Federal Savings & Loan Association.' $12. Petitioners show that the said W. P. Latimer is now holding and claiming title and right of possession to a tract of land fronting 118 feet on the northerly side of Oakwood Street, and extending back 'even wide' a distance of 178 feet, more or less, to the Orr property, by virtue of the deeds from Mrs. Lula Stewart to Citizens Building & Loan Association, and from Citizens Federal Savings & Loan Association to W. P. Latimer, respectively. That he claims the right to a frontage of 118 feet, measuring from the east side of said culvert in a westerly direction, when it was always understood that he was only to get exactly a tract fronting 100 feet on the northerly side of Oakwood Street, and his deed of conveyance only calls for a frontage of 100 feet, without any more or less.

A-8. When the defendant Latimer acquired the property by the deed from the Loan Association as stated above, the land was vacant and unenclosed. When said W. P. Latimer purchased said vacant lot, he knew that he was acquiring a lot on the east side of said...