Thompson v. Hill

Decision Date09 January 1912
Citation73 S.E. 640,137 Ga. 308
PartiesTHOMPSON v. HILL.
CourtGeorgia Supreme Court

Syllabus by the Court.

If the land intended to be granted appears clearly and satisfactorily from any part of the description in a deed and other circumstances of description are mentioned which are not applicable to that land, the grant will not be defeated, but those circumstances will be rejected as false or mistaken.

A deed to a parcel of land in a town described the land conveyed clearly by fixing its corner with reference to the distance from the intersection of the two streets, bounding the land on two sides by parallel streets, stating the distance between them and the number of feet which the land fronted on them. There was not in that immediate connection any mention of lot numbers. The deed then, in another paragraph described other land conveyed, in connection with which and seemingly as a part of the description of which was added "And being lots 66 and 75 of the J. B. Thompson property, as per plat No. 2, exhibited at auction sale thereof by Samuel W. Goode & Co., June 23, 1887." The land first described covered lots numbered 65, 66, 75, and 76. From the map contained in the record it did not appear what were the numbers of the second described parcel. The land was conveyed by one who inherited under the grantee to a purchaser, who took possession. A month after making the first deed, the original grantor made a warranty deed to another, describing the land so as to convey one-half of that covered by the first description in the other deed "being lots Nos. 66 and 75" as per the Goode & Co. plat. There was no effort to reform the first deed. The second grantee brought suit against the holder under the first deed to recover the land described in the second deed, but failed to recover. He then sued the grantor on his warranty. Held, that he was entitled to recover.

Parol evidence is admissible to adjust the description in a deed to the land conveyed; but if a deed conveys certain land, in the absence of any effort to have it reformed, its effect cannot be controlled by parol evidence that there was a mistake in the description, whereby more land was included than was intended.

(Additional Syllabus by Editorial Staff.)

Monuments are permanent landmarks established for the purpose of indicating boundaries.

A plat is a representation of land on paper, appealing to the eye by means of lines and memoranda rather than by words.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by R. A. Hill against J. B. Thompson. Judgment for plaintiff, and defendant brings error. Affirmed.

Anderson, Felder, Rountree & Wilson, for plaintiff in error.

Gober & Griffin and Bell & Ellis, for defendant in error.

LUMPKIN J.

R. A. Hill sued J. B. Thompson for breach of warranty. It appeared that the defendant had a tract of land surveyed into lots, and had a sale thereof. On June 23, 1887, he executed to Y. H. Thompson a deed, which was recorded on September 1, 1887. The recited consideration was $171. The description of the land conveyed was as follows: "All that tract or parcel of land situated, lying and being in the town of Austell, Georgia, and being part of land lot 140 in the eighteenth district of Cobb county, Georgia, commencing at a point on Hotel street two hundred and eight (208) feet from the southeast corner of Hotel and Central streets; thence east two hundred and twenty-three (223) feet to Pine street; thence south along Pine street one hundred and four (104) feet; thence west two hundred and twenty-three (223) feet to Hotel street; thence along said street one hundred and four (104) feet to the beginning. Also beginning at a point forty-nine (49) feet from the southwest corner of Thompson avenue and Central streets; thence west two hundred and twenty-nine and one-half (229 1/2) feet to a twenty foot alley; thence south along said twenty foot alley ninety-eight (98) feet; thence east two hundred and twenty-eight (228) feet to Thompson avenue; being lots numbered 65, 76, 124 and 125 of the J. B. Thompson property, as per plat No. 2 exhibited at auction sale of same by Sam W. Goode & Company on June 23, 1887." On July 22d the same grantor executed to the present plaintiff a deed, which was recorded on October 9th. It recited a consideration of $70, and described the land conveyed as follows: "All that tract or parcel of land lying and being in the town of Austell, Georgia, and being part of land lot 140 in the eighteenth district of Cobb county, Georgia, and more particularly described as follows: to wit: Commencing at a point on Hotel street two hundred and sixty (260) feet from the southeast corner of Hotel and Central streets; thence east two hundred and twenty-three (223) feet to Pine street; thence south along Pine street fifty-two (52) feet; thence west two hundred and twenty-three (223) feet to Hotel street; thence north along said Hotel street fifty-two (52) feet to the point of beginning; and being lots Nos. 66 and 75 of the J. B. Thompson property, as per plat No. 2 exhibited at auction sale thereof by Samuel W. Goode & Co., June 23rd, 1887."

Y. H. Thompson died, and one who inherited the property conveyed the land described in the first deed set out above to one Tom Jones. The latter took possession. Hill, the grantee in the second deed, brought suit in 1903 to recover the land described in his deed. A verdict and judgment went against him in 1905. In 1908 he brought suit against his grantor, alleging a breach of warranty. On the trial the court directed a verdict in favor of the plaintiff. The defendant excepted.

1. It was an ancient maxim that the first deed and the last will prevails. Shep. Touch. 88. This principle was applied to inconsistent clauses in the same instrument, so that the former of such clauses prevailed in case of a deed, the latter in case of a will. The trend of modern authorities is toward restricting the operation of this rule, so as to give effect to every part of a deed if possible; and, if this cannot be done, and there is an obvious intent derivable from the face of the instrument, the tendency is to reject only superadded parts which are repugnant thereto, if it can be done without violating some rule of law. In this state the rule as to repugnant clauses has been codified in section 4187 of the Code of 1910 thus: "If two clauses in a deed be utterly inconsistent, the former must prevail; but the intention of the parties, from the whole instrument, should if possible, be ascertained and carried into effect." Out of this disposition to give effect to an instrument, where practicable, doubtless arose the maxim, "Falsa demonstratio non nocet cum de corpore constat" (mere false description does not vitiate, if there be sufficient certainty as to the object). Characteristic cases within the rule, as strictly applied, were those where the description, so far as it was false, applied to no subject, and, so far as it was true, applied only to one subject. But in pursuance of the current of modern authority above mentioned it has become settled law that if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken, although it would be possible to apply them to a subject-matter so as to enlarge or diminish the grant. In seeking to determine whether a deed shows on its face what was the thing so intended to be granted, and whether there are other circumstances of description which may be rejected as false or mistaken, certain general rules have been evolved, under which ordinarily certain matters of description will outweigh or prevail over others. A few of these may be mentioned. What is most material and most certain in a description shall prevail over that which is less material and less certain. Thus courses and distances yield to natural, visible, and ascertained objects. Accordingly, when in the description of land in a deed known monuments are referred to as boundaries, they must usually govern, although neither courses nor distances nor the computed contents correspond therewith. Natural monuments have greater weight than artificial ones. Where all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction is rather to be preferred which is most favorable to the grantee. Tyler on Boundaries, 119, 120; Harris v. Hull, 70 Ga. 831. In the law of processioning, the Civil Code 1910, § 3820, declares that: "In all cases of disputed lines, *** natural landmarks, being less liable to change, and not capable of counterfeit shall be the most conclusive evidence; ancient or genuine landmarks, such as corner station or marked trees, shall control the course and distances called for by the survey." This accords with the method of construing deeds above mentioned. The rule in regard to monuments is not a mere arbitrary dictum, but is founded on reason and experience. As grants and conveyances are usually made with reference to an actual view of the premises, this is treated as presumptively the case. Monuments are considered stable and certain. They are visible things, existing on the ground, indicating the extent of the land and the direction of its boundaries. Those who examine the ground can see the monuments indicating the direction of its lines and the extent of its contents. Courses and distances laid down in the deed or plat, or in field notes, are merely descriptive of the land as it is. Hence, if the deed describes the land by monuments, this will control calls for courses and distances...

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