Opinion
18628.
ARGUED JUNE 15, 16, 1954.
DECIDED SEPTEMBER 14, 1954.
Injunction, etc. Before Judge Stephens. Twiggs Superior Court. March 19, 1954.
R.A. Harrison, Jones, Sparks, Benton Cork, for plaintiffs in error.
James D. Shannon, Nelson Nelson, Carl K. Nelson, contra.
1. Where the proven recorded chain of title of the petitioner describes the land conveyed as the James Bryan Place and also by metes and bounds, and the petitioner's extrinsic evidence shows the 46-acre tract involved in the suit to be a part of the Jim Mudd Bryant or James Bryant Place and within the metes and bounds, a prima facie case is shown, and unless contradicted would authorize a directed verdict for the petitioner.
2. And where, in rebuttal of the case above stated, the defendants proved a chain of deeds upon which they rely for proof that one of the defendants has title to the tract in controversy, which all the evidence shows to be a part of land lot 263, and where the first deed in such chain conveys only land lot 270, the petitioner's prima facie case is not thereby challenged.
3. While the defendants' evidence that the tract in controversy was no part of the James Bryan Place was in conflict with the petitioner's evidence that it was a part of that place, and made an issue of fact on that point, yet there was no conflict with evidence showing the Carter line which was a boundary named in the petitioner's deeds and which included the tract in controversy, and this uncontradicted evidence demanded the verdict for the petitioner.
ARGUED JUNE 15, 16, 1954 — DECIDED SEPTEMBER 14, 1954.
This is a case involving title to a 46-acre tract of land in land lot 263 of the 24th Land District of Twiggs County, Georgia, in which the defendant in error, Nelson S. Carswell, brought a petition for injunction and damages, to prevent the unlawful cutting of timber on his property and for damages to the timber already cut, against Jeffries-McElrath Manufacturing Company and Brady Floyd, and agent of the company, both parties claiming title to the land and both having derived title from R. R. Slappey, Sr., who had owned two adjoining plantations called the "Jim Mudd Bryant Place" and the "River Plantation." Carswell is now the owner of the "Jim Mudd Bryant Place," and Jeffries-McElrath is the owner of the "House Lot" of the "River Plantation." The evidence contained in properly recorded deeds, submitted during the trial of the case, disclosed that Mr. Slappey purchased the "James Bryan" or "Jim Mudd Bryant Place" in 1880, which was deeded by metes and bounds, containing 600 acres, more or less, and "bounded on the north by the lands belonging to the estate of Gustavus McCrea, on the east by the lands of Henry Carter, and on the south and west by lands of F.W. and W.F. Slappey." The earliest deed in his chain of title conveyed the tract as above, but also described it as comprised of lots of land, numbers not known, and instead of the boundary of the lands of W.F. and F.W. Slappey, it contained the name R.R. Slappey, Sr. At his death, his window received the "Jim Mudd Bryant Place" as a part of a year's support. Mrs. R.R. Slappey, Sr., then by quitclaim deed, on August 5, 1912, conveyed the same to her stepdaughter, Mrs. Mary Lou Carswell, the mother and predecessor in title of Nelson S. Carswell. Apparently, in the division of the R.R. Slappey, Sr., estate, each of the children received a part of the "River Plantation"; and on September 12, 1912, approximately one month after Mrs. Carswell received by quitclaim deed the Bryant Place, she joined with the other children in a warranty deed conveying to W.F. Slappey, her brother and a predecessor in title of the McElrath Company, the "House Lot" of the "River Plantation," containing 310 acres, more or less, which was described as follows: "All that tract or parcel of land lying and being in the Tarversville District of Twiggs County, Georgia, and known as the `House Lot' of the River Plantation and containing three hundred ten (310) acres of land more or less. Said land is that upon which the said W. F. Slappey now resides and is divided from other parts of the Slappey lands by three lines marked by hedgerows. The first line starts on the Tarversville and West Lake public road near the house of John Carter and runs back from said public road in a southwest direction along an original land lot line (numbers of lots now unknown) to the corner of four land lots (numbers now unknown) near what is known as the Plantation Gate. It runs from this corner in a northwest direction, along an original land line, crosses the said public road and goes until it reaches the land of the McCann Company, thence it goes in a northwest direction along an original land line between the Slappey lands and the McCann lands to a corner in what is known as the `Bush Arbor Woods.' Thence it runs in a straight line to the starting point on what is known as `Long House Hill.' The land herein conveyed is commonly supposed to be an original land lot (number now unknown) although it contains more than customary in this county (202 1/2) acres to lie in one lot."
The contention of the petitioner is that his land is composed of lots of land 263, 242, and 243, consisting of 600 acres, more or less, and that the land-lot line between land lots 270 and 263 is the dividing line between the parties, while Jeffries-McElrath contends that the "House Lot" is composed of all of land lot 270 and the 46 acres of land lot 263, and that the petitioner is not the owner and has never been in possession of the 46 acres in the south corner of land lot 263.
The petitioner's evidence in substance showed that he derived title through his stepgrandmother, who received the "Jim Mudd Bryant Place" or "Slappey Homeplace" as a part of a year's support in 1912, and that it is composed of 600 acres, more or less, comprising all of land lots 263, 243, and 242, and the 46 acres in the southeast corner of land lot 263 are a part thereof; that the land is timber land, but open spaces in lot 263 had been cultivated and rented out from year to year from about 1912 until about 1940; and that, upon learning of the claim of the McElrath Company in 1948 to the 46 acres, he instigated this suit against them to prevent them from cutting his timber.
The defendant's evidence in substance showed that they derived title to land lot 270 and 46 acres in the southeast corner of lot 263 in 1918 from Will Slappey, who had sold this property to Lattimore Bros., Inc., the predecessor in title of the McElrath Company; that the 46 acres in dispute were never a part of the "Slappey Homeplace," but part of the River Plantation, that Will Slappey was in possession of the "House Lot" of the River Plantation from 1912 to 1918, when he conveyed to the Lattimores. T.J. Lattimore, one of the brothers, testified that they purchased all of land lot 270 and 46 acres of lot 263 in 1918 and had tenants living on the land from that date until about 1943.
After both sides had presented considerable oral testimony and documents in the form of deeds and plats, the court, on motion of the petitioner, directed the verdict in favor of the petitioner and directed the jury to determine the amount of damages for the timber cut. After a verdict was thus returned in favor of the petitioner for a permanent injunction and damages in a stated amount, the court so directed and decreed. Thereafter, the defendants filed a motion for new trial, which was amended to add two special grounds, and after a hearing thereon, the court denied the amended motion on each ground, and the exception here is to this judgment.
1. The petitioner sought to enjoin the defendant from cutting timber on a 46-acre tract of land shown by all the evidence to be a part of lot 263 in the 24th District of Twiggs County, Georgia, and to recover damages for timber already cut therefrom. The direction of the verdict in favor of the petitioner for the land and injunction is by this writ of error brought under review. The petitioner proved a recorded title beginning with a deed from Land to Hodges in 1872, and ending with a deed from his stepgrandmother to his mother in 1912, and proved that as the only heir he inherited this land from his mother in 1948. The first deed in his chain contained three descriptions, to wit: (1) by metes and bounds, (2) a descriptive name, the James Bryan Place, and (3) lots of land, numbers not known, containing 600 acres, more or less. Substantially the same description is repeated in each subsequent conveyance. Since a description by metes and bounds controls over all other descriptions ( Carswell v. Sanders, 182 Ga. 251, 185 S.E. 282), including descriptions by land lot numbers ( White v. Spahr, 207 Ga. 10 (4a), 59 S.E.2d 916), the metes-and-bounds description would control. Plaintiff's extrinsic evidence shows without dispute that the 46 acres is within the boundaries fixed in the deeds as the Carter line, and he also proves that his land is comprised of three land lots, 263, 243, and 242, and known as the James Bryan Place. Plaintiff's evidence was, therefore, sufficient to prove his case.
2. The defendant's first assault upon the plaintiff's case was to prove a chain of deeds leading to the McElrath Company and beginning with a deed from other heirs of R.R. Slappey, Sr., to Will Slappey, dated September 23, 1912, and containing a number of attempted descriptions, to wit: (1) by metes and bounds; (2) the House Lot of the River Plantation, commonly supposed to be an original land lot, and (3) containing 310 acres, more or less. The general description by metes and bounds thus fatally defective in that it has no definite starting point, thus making it impossible to locate the starting point by following the deed. But the other descriptions show very definitely an intention to convey the house lot, and that this was an original land lot and was a part of the River Plantation. This description when aided by extrinsic evidence is valid; and since the undisputed evidence shows the house to be on land lot 270, and the deed shows an intent to convey that original lot, the deed must be construed to convey only lot 270. The manifest intention of the parties must be given effect. Code § 29-109; Guess v. Morgan, 196 Ga. 265, 269 (2) ( 26 S.E.2d 424); Stewart v. Latimer, 197 Ga. 735, 743 ( 30 S.E.2d 633); Mitchell v. Spillers, 203 Ga. 565, 568 ( 47 S.E.2d 564); Jackson v. Rogers, 205 Ga. 581, 586 ( 54 S.E.2d 132). Therefore, the defendants' claim of written title in the defendant company fails and constitutes no defense, and is no ground for setting aside the directed verdict for the plaintiff.
3. But defendants contend that, by proving possession of a part of the land described in subsequent deeds, which expressly describe the 46-acres tract involved, which possession extended over a period of more than 7 years, the defendant company acquired title by prescription under Code § 85-407. Turner v. Neisler, 141 Ga. 27 (8) ( 80 S.E. 461); Elliott v. Robinson, 192 Ga. 682 (3) ( 16 S.E.2d 433); Elliott v. Robinson, 198 Ga. 811 ( 33 S.E.2d 95). The insuperable obstacle barring such prescriptive title is Code § 85-404, since the plaintiff's deeds cover the same 46 acres.
But the testimony of the defendants' witness Axom, that the 46 acres here involved was part of the River Place and is not a part of the James Bryan Place contradicts evidence of the plaintiff that it is a part of the James Bryan Place, and thus an issue of fact was made as to which place it belonged to, and we granted a rehearing on this ground alone. But, after further and careful study, we find that an issue on this point alone is not enough to reverse the direction of a verdict for the petitioner. His entire chain of title describes one of the boundary lines in the general metes-and-bounds description as Carter lands. Undisputed evidence shows Carter owned lot 262 and the original line was the dividing line between that land and lot 263, and also that lot 263, except the 46 acres, belonged to the plaintiff. If the plaintiff's tract is bounded on the east or south by the Carter land, as the deeds provide — and this is undenied — then this 46 acres is included, else it would be partially bounded on that side by the River Place or Slappey lands, whereas the deeds show it bounded on two other sides only by the River Place or Slappey lands.
From what has just been said it follows that this uncontradicted evidence demanded the verdict for the petitioner. Therefore, whether or not the photograph which was offered, but rejected, as evidence was admissible, its exclusion was harmless, since the same verdict would have been demanded with it in evidence. The court did not err in denying the motion for new trial as amended.
Judgment affirmed. All the Justices concur.