Summary
In Holt v. Tate, 193 Ga. 256 (18 S.E.2d 12), it was in effect held that an insufficient description could not be aided by amendment seeking further to describe the land sued for, otherwise than to show that the deed by its own terms, when taken in connection with the physical facts as to the lines of the adjoining owners named in the deed, necessarily and in itself afforded its own key by which the property conveyed could be positively identified as set forth in the additional description.
Summary of this case from Oglesby v. Volunteer State Life Ins. Co.Opinion
13858.
NOVEMBER 13, 1941. REHEARING DENIED DECEMBER 2, 1941.
Complaint for land. Before Judge Crow. Mitchell superior court. May 31, 1941.
Edward T. Hughes, for plaintiff. Frank S. Twitty, for defendant.
1. The instrument by express terms and in fact following the promissory note, to which reference was made, sufficiently disclosed a grantee. Compare Mason v. Parker, 101 Ga. 659 ( 28 S.E. 985); Evans v. Thompson, 145 Ga. 221 ( 88 S.E. 926).
2. There being no defeasance clause embodied in the instrument, and the instrument being such as to convey title to secure a debt, the instrument must be construed as a security deed rather than a mortgage. Where a conveyance is clearly expressed by the terms of the instrument, the absence of the usual habendum clause will not operate to invalidate the conveyance of title actually made.
3. "Where a deed conveying title is given to secure the payment of a promissory note, suit thereon for the possession of the land may be maintained after the lapse of twenty years from the date of the maturity of the note, and the statute of limitations is not applicable." Kirkpatrick v. Faw, 182 Ga. 25, 28 ( 184 S.E. 855), and cit.
4. While it is true that in an ejectment suit to recover land held by the grantor of a security deed the plaintiff must recover on the description set forth in the instrument under which he claims title ( Metropolitan Life Insurance Co. v. Hall, 191 Ga. 294, 307 12 S.E.2d 53; Clayton v. Newberry, 138 Ga. 735 (2), 76 S.E. 63), yet if the instrument provides on its face a key by which the conveyed property can be identified. it is sufficient. Swint v. Swint, 147 Ga. 467 (2) ( 94 S.E. 571); Crawford v. Verner, 122 Ga. 814, 816 ( 50 S.E. 958); Shackelford v. Orris, 129 Ga. 791, 793 ( 59 S.E. 772); Blumberg v. Nathan, 190 Ga. 64, 65 ( 8 S.E.2d 374).
5. The amendments to the petition, seeking to further describe the land sued for, could give no additional vitality to the deed forming the basis of the suit, other than to show that the deed by its own terms, when taken in connection with the physical facts as to the lines of the adjoining owners named in the deed, necessarily and in itself afforded its own key by which the property conveyed could be positively identified, as set forth in the additional description.
6. The description contained in the security deed does not afford any adequate and definite description, since it appears by the petition as amended that the actual physical conditions are such that the lines could not be run in accordance with the descriptive requirements of the deed, and that the additional elements of description pleaded in its support are not only not in accordance with any key supplied by the deed itself, but are in contradiction of the terms therein expressed.
7. Under the foregoing rulings, the petition failed to set forth a cause of action, and was properly dismissed on general demurrer.
No. 13858. NOVEMBER 13, 1941. REHEARING DENIED DECEMBER 2, 1941.
This was a suit in ejectment to recover thirty-nine acres of land described in an instrument preceded by a promissory note payable to the plaintiff, and containing language which, so far as essential to the determination of this case, is as follows: "In order to secure the payment of the foregoing note for five hundred and sixty dollars, I hereby bargain, sell, and convey to the payee of this note, their heirs, executors, administrators, and assigns, the following property, which is expressly declared to be my individual property, free from any lien whatever, and the title to which I warrant and will defend, to wit: thirty-nine (39) acres off of lot of land No. 213, bounded as follows: on the west by land of C. F. Williford, south by the lands of J. S. Gee, east by original land line; all being and lying in 11th district of Mitchell County, Georgia." By amendment, it was shown by the petition that the land sued for was the same land as described in a deed to the defendant, recorded in the clerk's office in a named book and page, the description in said last-named deed being as follows: "39 acres of land, part of land lot No. 213 in the 11th district of Mitchell County, Georgia, described as follows: beginning on the east line of said land lot at a point 242 yards from the east corner of said lot of land, and running west 440 yards, thence north 440 yards, thence east 440 yards, thence south 440 yards to starting point. Said tract containing 40 acres, less one acre sold for colored Methodist Church in northeast corner of said 40-acre tract." The court sustained a general demurrer to the petition as amended, and the plaintiff excepted. Appended here is a plat taken from the brief of the plaintiff, showing the boundaries as contended in the amended petition, and for which it is urged the description in the security deed furnishes the key.
Some elaboration of headnote 6 seems proper. Taking the description of the land sued for as contained in the security deed, since it appears that the entire eastern boundary is described as being the original land line of lot 213, and since the southern boundary of the premises is likewise ascertainable as being the northern boundary of land belonging to Gee, the southeast corner of the conveyed premises is determined by the point where the northeast corner of Gee's land touches the original line of lot 213. From this starting point, following the northern boundary of Gee's land westward until the land of Williford is reached renders certain not only the southeastern corner and the southern line, but the southwestern corner. Then starting at the southwest corner as thus ascertained, and proceeding north along the Williford land line to a point sufficiently far, so that a straight line running east to the original land line would embrace 39 acres, would, except for the reason hereinafter stated, complete the description. Except for that reason later mentioned, this could be done; for, as was held in the similar case of Moody v. Vondereau, 131 Ga. 521 (2), 526 ( 62 S.E. 821), where the western, southern, and eastern boundaries were definitely fixed by the deed, "in the absence of a contrary intent appearing, the northern line of the land granted is to be located by a line drawn due east and west so as to cut from the larger tract the number of acres specified in the deed." Especially would this be true in the instant case, except for the reason to be stated, because if this northern line were not run due east and west, either the eastern boundary would not be made up entirely of the original line of the land lot, or else the western boundary would not be determined entirely by the land of Williford, and would thus contradict the terms of the security deed. See Crosby v. McGraw, 133 Ga. 560 ( 66 S.E. 897).
It appears, however, that such a northern boundary line running west to east so as to include thirty-nine acres as required by the security deed can not be established without contradicting other vital descriptive data given by the same deed, since it is a physical fact, which is shown to be true by the amendment to the petition, that such a northern line running from west to east so as to include the required thirty-nine acres would not strike the original land line of lot 213 at all, as would be required by the security deed, but would strike a church lot, and the land as thus surveyed would not be bounded on the east entirely by the original land line of lot 213. Even were it possible to assume that, without any authority or key from the terms of the security deed, this northern line might be so run as to cut off forty acres, instead of the stated thirty-nine, and thus allow for the one-acre church lot, this too would be in contradiction of the explicit terms of the security deed, since the land thus segregated and set apart would be bounded on the east only partly by the original land-lot line and partly by the church lot, whereas the deed says that the eastern boundary, which means the entire eastern boundary, is the original land line of lot 213. Accordingly, the descriptive language given by the security deed is fatally deficient, and fails to afford the basis of a definite description; and not only is there no key for the aid pleaded in its support by the amendment to the petition, but the actual physical facts thus pleaded are in direct contradiction to the data embodied in the security deed itself, on which the plaintiff must rely.
While, as counsel for the plaintiff submit, it was said by this court in McCaskill v. Stearns, 138 Ga. 123, 126 ( 74 S.E. 1032), that "a deed will not be held void for uncertainty from the fact that the description in part is false or incorrect, if there are sufficient particulars given to enable the premises intended to be conveyed to be identified," this rule does not seem applicable here, as it was in that case. In the McCaskill case, the ruling was as follows: "Early County was laid out by virtue of an act approved December 15, 1818, which provided that its territory should be laid off into districts, and subdivided into lots of 250 acres each. Decatur County was formed from Early County in 1823, and embraced the 15th district; and Baker County was formed from Early County in 1825, after Decatur County was carved out of it. A deed executed in 1842, conveying `those tracts or parcels of land being in the County of Baker, formerly Early County, as follows: in the 15th district, lots . . 76, 77, 90, 83, 84, . . each lot containing 250 acres, more or less,' is to be construed as conveying the lots in the 15th district of Decatur, formerly Early County. The statement, the `land being in the County of Baker,' is matter of general description, and must yield to the more particular description in the deed, which locates the land in Decatur County." In that case the deed by its own terms admittedly gave sufficient particulars to enable the premises conveyed to be definitely identified. To this complete, precise, and definite description of lands which formerly lay in Early County was added the incorrect statement that they lay in Baker County, whereas they in fact lay in Decatur County. This court merely applied the rule that it would "take judicial notice of the boundaries and the relative location of its various counties, as originally laid off; of the governmental survey of its territory, where the same was, agreeably to lawful authority and direction, divided into districts, each containing land lots of a given shape and size, designated by numbers; and also of the effect of all legislative enactments creating new counties and fixing the boundary lines thereof." Stanford v. Bailey, 122 Ga. 404 ( 50 S.E. 161). Applying this rule, it was definitely ascertainable that the lots conveyed, being formerly in Early County, must necessarily, at the time the deed was executed, have been located in Decatur and not in Baker County. This being true, under the rule that general description must give way to more particular description, this court held that the particular description, which showed that the land lay in Decatur County, would prevail over the mere general statement that it lay in Baker County. Here, in the instant case, there is no description at all contained in the security deed, such as would identify or furnish a key to any definite parcel of land which the physical facts actually existing and as set forth by the amendment to the petition would permit. This amendment was not harmful to the plaintiff's case. It merely gave a correct preview of a situation which would inevitably arise under the evidence in seeking to work out any definite identification in accordance with the terms of the deed and the physical lay of the land. Since the physical facts, as shown by the amendment, do not permit the identification which the amendment seeks to set up, but since on the contrary, the amendment shows that the land sought to be recovered can not be thus identified without positively contradicting the express terms of the deed relating to the one and only possible description which it is claimed the deed supplies the key to, it follows that the deed must be held invalid.
Judgment affirmed. All the Justices concur.