Grace v. Rouse , 202 Ga. 720 ( 1947 )

1. Where a portion of premises sued for is described as being "fifty acres of land in the southeast corner of lot of land No. 30, in the first district of Crawford County, Georgia," the description is sufficient to enable the jury to identify it in the verdict. Such language should be construed as alleging that the lot is in the form of a square and the land sued for located by taking the southeast corner of the lot as a base point and running equidistant along the two lines of the lot which intersect at such corner to the intersection of other lines drawn parallel to the respective lines first mentioned, all lines being of such length as will embrace the exact quantity of 50 acres. As to that portion of the premises sued for which was appropriately described, a verdict should not have been directed for the defendants upon the ground that the jury would be unable to identify it in the verdict.

2. Title to land set apart as a year's support to a widow and minor children upon the death of the widow vests in the children who are then minors, and is not subject to sale by the representative of the widow's estate. Dickerson v. Nash, 74 Ga. 357.

No. 15939. OCTOBER 15, 1947. Hamp Grace, a minor, by and through his guardian and next friend, Mrs. Mattie Grace Hutchinson, brought suit against Wallace Rouse, E. J. Stembridge, and H. L. Justice in the Superior Court of Crawford County. His petition, after being amended, alleged: that the plaintiff was entitled to the use, benefit, and possession of "fifty acres of land in the southeast corner of lot of land No. 30 and fifty acres in lot of land No. 29, in the first district of Crawford County, Georgia, being the Rudolphus Grace home place, less that portion sold to J. T. Mathews by Mattie Grace. Said 100 acres of land bounded north by Colbert lands; east by John Kendrick and Jordan place; south by Clayton Whitaker; and west by J. T. Mathews." It was further alleged that this land, with other lands, was set apart from the estate of Rudolphus Grace as a year's support for the use and benefit of Mattie Grace, widow, and her five minor children, the plaintiff being the youngest; that the widow is now dead, and all of the children, other than the plaintiff, are either dead, married, or more than twenty-one years of age. The administratrix of Mattie Grace's estate sold the land in controversy to Wallace Rouse, her husband, who subsequently conveyed it to E. J. Stembridge and H. L. Justice. The defendants refuse to surrender possession. The prayers were for a writ of possession and for a cancellation of the deeds under which the defendants hold, as a cloud on the plaintiff's title. There was no demurrer to the petition.

By joint answer the defendants admitted that they were in possession of a part of the Rudolphus or Mattie Grace lands, but would not say that they were in possession of the particular part described in the petition. Wallace Rouse purchased from Amelia Grace Rouse, as administratrix of the estate of Mattie Grace, the following lands: "Fifty acres of land in the southeast corner of lot of land No. 30, and fifty acres in lot of land No. 29, in the first district of Crawford County, Georgia, being the Rudolphus Grace home place, less that portion sold to J. T. Mathews by Mattie Grace." Wallace Rouse then conveyed the same land to the other two defendants. These conveyances vested good title in the defendants, Stembridge and Justice. At the conclusion of the evidence offered by both sides, the court directed a verdict for the defendants in the following language: "Take a verdict. I don't believe a jury could ever locate the lands from the pleadings in the case."

The plaintiff's motion for new trial, based on the usual general grounds, and as amended by adding a ground alleging that the court erred in directing a verdict for the defendants, was overruled and the exception here is to that judgment. 1. It is well-settled law in this State that where the evidence in a civil case, with all reasonable deductions and inferences which may be drawn therefrom, demands a particular verdict, it is not error for the court to direct the jury to find accordingly. Code, § 110-104; Morgan v. Burks, 90 Ga. 287 (15 S.E. 821);Darsey v. Darsey, 138 Ga. 584 (75 S.E. 667). In an action for land, as here, where both the plaintiff and the defendants have introduced testimony, and where the plaintiff's case fails to identify the land sued for, or to show such title in him as would authorize a verdict in his favor, it is not error to direct a verdict for the defendants. Morris v. Harris, 147 Ga. 58 (92 S.E. 878). In the instant case, the court directed a verdict for the defendants, assigning as his reason therefor that he did not think that the jury could ever locate the land in controversy from the pleadings in the case. We construe this language to mean that a verdict was directed for the defendants because the plaintiff had failed to identify the land sued for. If the judge was right for the reason given, or for some other reason shown by the record, his action should be sustained; otherwise not.Pritchett v. King, 56 Ga. App. 788, 790 (194 S.E. 44). We shall first look at the record to see if it supports him for the reason assigned. This court has frequently held that in an action for land, if the plaintiff is entitled to recover only a portion of the premises sued for, a recovery may be had for such portion if it is sufficiently identified by the evidence to enable the jury to describe it in the verdict; but if the evidence is so vague and indefinite as to fail to identify any particular portion, the plaintiff can not recover. McElroy v. McElroy,142 Ga. 37 (82 S.E. 442); National Land Coal Co. v.Zugar, 171 Ga. 228 (155 S.E. 7). It will be conceded that, if the pleadings and evidence were not sufficient to describe all of the lands sued for, but sufficient as to some particular portion thereof, then the verdict should not have been directed as to that part for the reason assigned by the court. Without passing upon the sufficiency of the description of all the premises sued for, we think that the 50 acres described as being located in the southeast corner of lot number 30, in the first district of Crawford County, Georgia, and being a part of the Rudolphus Grace home place, was sufficiently described by the pleadings and evidence to have enabled the jury to identify it in their verdict. The original plats, showing the boundary lines and the relative location of the districts and land lots in each county of this State, are of file in the office of the Secretary of State, and this court will take judicial notice of the fact that land lot 30, in the first district of Crawford County, Georgia, contains 202 1/2 acres and is located in a square with its boundary lines running north and south, east and west.Payton v. McPhaul, 128 Ga. 510 (58 S.E. 50, 11 Ann. Cas. 163); Darley v. Starr, 150 Ga. 88 (102 S.E. 819); Harper v. Hesterlee, 152 Ga. 251 (109 S.E. 902). Thus, the petition here, describing a part of the premises sued for as being "fifty acres of land in the southeast corner of lot of land number 30," must be construed as alleging that the lot is in the form of a square, and the part of the lot sued for may be located by taking the southeast corner of the lot as a base point and running equidistant along the two sides of the lot which intersect at such corner to the intersection of other lines drawn parallel to the respective lines first mentioned, all of the lines being of such length as will embrace the exact quantity of 50 acres.Harper v. Hesterlee, supra. Therefore, as to this particular portion of the land sued for, the pleadings and evidence were sufficient to have enabled the jury to describe it in their verdict. For the reason given by the court, the direction of a verdict for the defendants was erroneous, since the plaintiff was entitled to have the issue as to the 50 acres in the southeast corner of lot number 30 submitted to the jury. Since, in the view we take of the case, it will be necessary for it to be tried again, we will not pass on the sufficiency of the description of the remaining lands sued for, as the plaintiff will have an opportunity to amend his petition, if he desires to do so, when the case is returned to the lower court.

2. Upon a careful examination of the record, we do not think that the court was authorized to direct a verdict for the defendants upon the ground that the evidence as to title demanded such a finding. Rudolphus Grace was the plaintiff's and the defendants' common grantor. The plaintiff claimed the land in controversy as sole remaining beneficiary under a year's-support proceeding; it being his contention that the land sued for was set apart from the estate of his father, Rudolphus Grace, to his mother, Mattie Grace, now deceased, and her five minor children, the youngest of whom was the plaintiff, still a minor. The other children now in life, who took under the year's-support proceeding, had all reached their majority. The undisputed evidence showed this contention to be true. The defendants based their claim for the land upon a deed from Amelia Grace Rouse, as administratrix of the estate of Mattie Grace, deceased, to Wallace Rouse, and from Wallace Rouse to the other two named defendants. The record shows that Mattie Grace, at the time of her death, had no interest in the lands involved, except such as passed to her and her minor children under the year's-support proceeding. This being true, and the evidence shows that it is, she left no interest in the lands to be administered by her representative. Dickerson v.Nash, 74 Ga. 357. Applying the principle of law there announced to the facts of this case, it necessarily follows that the deed from Amelia Grace Rouse, as administratrix of Mattie Grace's estate, to Wallace Rouse, dated May 4, 1943, purporting to convey a part of the lands set apart as a year's support to Mattie Grace and her minor children, passed no title therefor to him; and having acquired no title himself to any part of the lands in controversy, he could pass none to his grantees, the other defendants. As to that portion of the land sued for, which we have held in the preceding division of this opinion was appropriately described, the evidence was amply sufficient to have authorized a verdict for the plaintiff, if in fact it did not demand one, and it was error for the court to direct a verdict for the defendants on the issue of title.

From what we have held in the two divisions of this opinion, it follows that the court erred in overruling the amended motion for new trial.

Judgment reversed. All the Justices concur, except Wyatt, J.,who took no part in the consideration or decision of this case.