Harwell v. Foster , 97 Ga. 264 ( 1895 )

Atkinson, J.

It is essential to the maintenance of an action of ejectment, that the premises alleged to have been demised be described with such certainty as that, in the event of a recovery by the plaintiff, a writ of possession issued upon the-judgment and describing the premises as laid in the declaration, shall so identify the premises sued for as that the sheriff, in the execution of the writ, can deliver the possession in accordance with its mandate.

August 5, 1895.

Complaint for land. Before Judge Jenkins. Morgan, superior court. September term, 1894.

Tbe description of the premises sued for in the first case, as set out in the declaration, 'is “a certain tract of land in said [Morgan] county, 'to wit: five hundred acres of land, part of eight hundred and eighty acres originally belonging to the estate of Littleton T. P. Harwell dec’d, and bounded as follows, to wit: bounded by Kilpatrick and land of Sea-born Reese, on the west by the Seven Island road and Mrs. Godfrey, on the south by land originally belonging to Oapt. William Hearn, on the west by the estate of Frank Hearn and others.” In the other case the premises sued for are described thus: “a certain tract of land in said Morgan county, Ga.., to wit five hundred acres of land, a part of eight hundred and eig'hty acres originally belonging to the estate of Littleton T. P. Harwell dec’d, and bounded as follows, to wit: bounded on the north by lands of Mrs, A. M. Harwell and children, on the west by lands of R. H. Thomason, south by lands of F. C. Foster, ex’r of A. G-Foster dee’d, and on the east by lands of Mrs. Godfrey, S. A. Burney and others.”

E. F. Edwards, George & George and J. G. Key, for plaintiffs. Foster & Butler, for defendants.

2. If the premises sued for he described as a certain number of acres embraced in a larger tract, which latter tract is accurately described, but there is no further description of the particular premises sued for, such description is too indefinite to be made the basis of a recovery; and if upon the trial the evidence for the plaintiff be as uncertain as the description, laid, a nonsuit should be awarded; and even greater .certainty in the evidence would not prevent a nonsuit, unless the declaration be amended so as to conform to the evidence.

3. Where, in an exactly similar case, there was a verdict for the defendant, the court rightly refused to set it aside; and this is true irrespective of errors alleged to have been committed at the trial. Judgment affirmed.