White v. Spahr
| Decision Date | 10 May 1950 |
| Docket Number | No. 17087,17087 |
| Citation | 59 S.E.2d 916,207 Ga. 10 |
| Parties | WHITE et al. v. SPAHR. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. That which is most material and most certain in a description of land shall prevail over that which is less material and less certain; and whenever, in the description of land conveyed by deed, natural, visible, and ascertained objects and monuments are referred to as boundaries, they must govern, although neither courses nor distances, nor the computed content, correspond with such boundaries.
2. 'A request to charge the jury must be legal, apt, and precisely adjusted to some principle involved in the case, and be authorized by the evidence.' Rogers v. Manning, 200 Ga. 844(2), 38 S.E.2d 724.
(a) The request to charge set out in the second division of the opinion failed to meet these requirements, and the court did not err in refusing it.
3. The description of land contained in a deed is not void for uncertainty if it furnishes a key sufficient to identify the land, and such descriptive terms as 'being all the lands owned by [a named person] at the time of his death', and 'known as the old William Allison place' furnish such a key.
4. Where the description of land contained in a deed is uncertain, but the land thereby conveyed forms a part of a larger tract previously owned by the grantors, reference may be made to prior deeds from the same grantors, conveying other portions of the larger tract, which make more certain the boundaries described in the later deed.
(a) Where a deed describes land as being parts of certain numbered lots, and also contains a description of the tract of land by metes and bounds, calling for natural, visible, and ascertained objects and monuments, and such description by such meters and bounds includes a part of a lot not designated by number, such metes and bounds must govern.
5. Where there are neither pleadings nor evidence to support a decree, it cannot lawfully stand.
W. A. White, H. J. White, and T. J. McConnell brought their petition in White Superior Court against H. G. Spahr, alleging in paragraph 2 of the petition that the Whites held legal title to, and that McConnell was in possession under bond for title from them of, all of lot of land No. 67 in the Third Land District of White County, except about three acres on the west side of the lot were Ernest Sims resided, and which three acres are described in a deed from the Whites to one Abernathy, and also except that portion of said lot which lies north of Dukes Creek, and one acre for Lawrence Graveyard.
The petition further alleges that the defendant claims a tract of land conveyed to him by Mrs. C. W. Hunter on July 11, 1935, being part of lots Nos. 62 and 63 in the Third Land District of said County; and gives the date and book where said deed is recorded.
It is alleged that the defendant holds no deed or title to lot 67 or any part thereof, and that the defendant has no right, title, or interest in or to land lot No. 67, but that he has gone on lot 67, across the original east and west line between said lot and lot No. 62, and cut and felled growing timber thereon to the injury and damage of the plaintiffs, and is threatening to continue to cut and appropriate to his own use the growing timber on lot 67; and the plaintiffs pray for process; for the recovery of damages for the timber alleged to have been cut and removed; for exemplary damages; that the defendant be restrained and enjoined from going upon or trespassing upon lot 67, and for general relief.
To this petition the defendant filed his answer, in which he denied that the plaintiffs held title to and were in possession of all of lot 67 save the excepted portions thereof described in the petition; and alleged that he held a warranty deed from Mrs. C. W. Hunter to the land in dispute, and that he, together with his predecessors in title, had been in peaceable, exclusive, uninterrupted and actual possession of said land for a period of 89 years. He denied that he had gone upon and cut and removed any timber from lands belonging to the plaintiffs, and alleged: that he had cut some growing timber near the old Bart Allison home place, but alleged that said timber and the land upon which it grew had been in the possession of the defendant and his predecessors in title for 89 years; and alleged that the plaintiffs had no right, title or interest therein, and were not entitled to possession thereof; that the plaintiffs well knew that the disputed area has been in the actual, peaceable, exclusive and uninterrupted possession of the defendant and his predecessors in title since William Allison resided thereon in the year of 1857, and that a line from what is known as the Meade corner has been since that date recognized as the line by all adjoining land owners except the plaintiffs, and that until 1942 they had so recognized the line.
The defendant alleges that the title to the land in dispute should be decreed to be in him, and that the plaintiffs have no right, title, or interest therein; and he prays that the relief sought by the plaintiffs be denied; that the restraining order previously granted be dissolved; that title to the disputed area be decreed to be in the defendant, and for general relief.
On the trial the plaintiffs introduced in evidence: a bond for title from W. A. and H. J. White to T. J. McConnell, dated ___ day of December, 1919, embracing the land described in paragraph 2 of the petition; a deed from Idus Brewer, Receiver of James W. McMillan estate, to W. A. White and H. J. White, dated Nov. 5, 1940, conveying all of lot 67 of originally Habersham County, but now White County, Georgia, except one acre owned by Dukes Creek Church and three acres on west side of said lot known as the H. N. Abernathy three-acre house lot; and it was stipulated by counsel for the parties that Chas. W. White and W. A. White had executed a bond for title to this property to J. W. McMillan, that he never completed payment of the purchase-price, and that Brewer was appointed receiver of his estate and sold his equity in the property to W. A. and H. J. White.
The plaintiff also introduced in evidence:
A deed from James F. Redding and others to W. A. White and Chas. W. White, conveying all of lot 67 excet 50 acres more or less included in what was known as Mercer Mine, and exception one acre owned by Dukes Creek Church, this deed being dated ___ day of November, 1919, and duly recorded.
A quitclaim deed from Henry Newton Abernathy to W. A. and Chas. W. White to 'all of lot of land No. 67 in the 3rd land district of White County, Georgia, and containing 250 acres, except three acres on the west side of said lot No. 67, said 3 acres being that part of said lot on which said Abernathy now lives, and bounded and described as follows: Beginning at a rock corner on the north and south line of said lot 67 near where the old road leading to the Lawrence Graveyard leaves the Cleveland and Hiawassee Road near the branch; thence in an easterly direction along said road a distance of 210 feet to a rock corner; thence north parallel with the north and south line of said lot 67 a distance of 630 feet to a rock corner; thence west a distance of 210 feet to a rock corner on the north and south original line of said lot No. 67; thence south along said original line a distance of 630 feet to the beginning corner.'
The defendant introduced in evidence deeds as follows:
Deed from Obadiah Dick to John Fain, dated November 5, 1821, conveying 'all that tract or parcel of land situated, lying, and being in State of Georgia, County of Habersham, Third District No. 67, containing 250 acres.'
Deed from John Fain to James Gilleland, dated August 12, 1824, conveying land lot 67 in Third District of Habersham County, Georgia.
Deed from James Gilleland to William Powell, dated April 25, 1827, conveying 25 acres of lot 67 in the 3rd District of Habersham County, and particularly describing the 25 acres conveyed.
Deed from William Powell to Benjamin Allison dated April 25, 1828, conveying land described in the deed last above referred to.
Deed from R. L. Allison, as administration of estate of Mrs. Julia A. Allison (who was widow of William Allison, who was son of Benjamin Allison), to G. B. Allison dated November 5, 1912, conveying: .
Deed from G. B. Allison to R. L. Allison, dated November 5, 1912, conveying all parts of lots of land Nos. 62, 63 and 66 in the 3rd land district of White County, Georgia, and containing one hundred acres, more or less, and being all the land owned by Mrs. Julia A. Allison at her death. This deed is to convey a one-half undivided interest in and to the above lands; the other one half interest to remain in this grantor.
Deed from R. L. and G. B. Allison to Mrs. J. B. Sims, dated February 26, 1916, conveying all that tract or parcel of land lying and being in the 3rd district of White County and being parts of lots of land Nos. 66 and 63 in said 3rd District containing fifty acres, more or less, and described as follows: beginning at the ford of the branch known as the Ash Branch near where Bart Allison formerly lived; thence down said branch to a rock corner; thence a little west of north along the high ground to a rock corner known as the Meade corner; thence northwest a straight line to a rock on the side of the Cleveland-Hiawassee Road; thence in the same direction a straight line to a rock; thence on still in the same direction to a rock corner on the conditional line between this property and the Calhoun property; thence a conditional...
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