Opinion
27715.
SUBMITTED FEBRUARY 12, 1973.
DECIDED MARCH 8, 1973.
Injunction; title to land. Bibb Superior Court. Before Judge Culpepper.
Joel A. Willis, Jr., for appellant.
Adams, O'Neal Hemingway, Kice H. Stone, for appellee.
The trial judge properly granted summary judgment in favor of the defendant.
SUBMITTED FEBRUARY 12, 1973 — DECIDED MARCH 8, 1973.
Under the terms of a divorce decree dissolving the marriage of the present litigants the former wife, the defendant in the trial court in the present case and the appellee here, received in trust for the support, education, and maintenance of one of the children of the marriage, one-half of the undivided interest of the former husband "in what is known as Baconsfield Park, said property being more fully described as follows:
"All that tract or parcel of land commonly known as Baconsfield Park, the same being fully described in the Last Will and Testament of Augustus Octavius Bacon which Will is of record in Book of Wills `F', Folio 339, Bibb County Court of Ordinary, the description in said Will being expressly incorporated herein by reference for purposes of a more specific description."
The testator refers in the referenced will to "the following described part of my farm which is situated in part within and part without the corporate limits of the City of Macon, and known as `Baconfield,' the same to be set apart and dedicated to the purposes, uses and enjoyments as hereinafter more fully set forth and detailed." Then follows a detailed description of the trust property.
In purporting to create a trust of this property after the death of his wife and two daughters, the testator designated the land for use "as a park and pleasure ground" but further provided that the Board of Managers "may use for purpose of income in any manner they may deem best that portion of the property that lies Easterly of the road known as Boulevard Baconsfield." Continuing, he stated "excepting the portions of the property which may be used for purposes of revenue or aforesaid all the remainder of said property shall forever and in perpetuity be held for the sole uses, benefits and enjoyments as herein directed and specified." The appellant acquired his interest in the property as a great-grandson of the testator when the trust failed. For a history of this litigation see Evans v. Newton, 221 Ga. 870 ( 148 S.E.2d 329).
The land set apart for revenue purposes is designated in the present litigation as Commercial Tracts A and B, and the crux of the present dispute, in the trial court and here, is whether the conveyance in the divorce decree includes Commercial Tracts A and B, the appellant contending that the decree awards an undivided interest only in the land designated exclusively for park purposes and commonly known as Baconsfield Park, and that therefore he is entitled, among other things, to any sums received by his former wife, as trustee, as her share of the proceeds from the sale of Commercial Tracts A and B.
The appeal is from the grant of a summary judgment in favor of the defendant, wherein the trial judge concluded "that tracts A and B contained and described in plaintiff's complaint are included in the description contained in Paragraph 3 of the divorce decree."
We affirm. The rules of construction which apply to a conveyance by deed are applicable to a conveyance included in the terms of a divorce decree. Under such rules "if the terms of the description are uncertain, the deed shall be construed most favorably for the grantee." Ray v. Pease, 95 Ga. 153, 171 ( 22 S.E. 190); Thompson v. Hill, 137 Ga. 308, 317 ( 73 S.E. 640). "Where a deed contains two descriptions of the land conveyed, one general and the other particular, if there is any repugnance, the latter will prevail." Osteen v. Wynn, 131 Ga. 209, 213 ( 62 S.E. 37, 127 ASR 212). And, to the same effect involving a divorce decree, see Harlan v. Ellis, 198 Ga. 678, 681 ( 32 S.E.2d 389).
Under the facts in the present case in the light of the rules set forth above we treat the conveyance in the divorce decree as a contract of record subject to the same rules of construction as if it were a deed, and as if the parties are grantor and grantee. Assuming further that parol evidence was admissible, as submitted by the plaintiff, to show that "what is known as Baconsfield Park" excludes Commercial Tract A and B, it is obvious that this generalized description, when compared to the description in the will, is repugnant to the description in the will, and conveys less than the land described in the will. Under the rules in cases such as Ray, Thompson, and Osteen, supra, any mistake or discrepancy in the description must be resolved in favor of the grantee.
The trial court correctly held that the commercial Tracts A and B were included in the property described in the will as a "park and pleasure ground" and by reference were included in Item 3 of the divorce decree, and properly granted summary judgment for the defendant.
Judgment affirmed. All the Justices concur.