Huntress v. Portwood ( 1902 )

Simmons, C. J.,

dissenting. 1. “Thedescription of the property conveyed in a deed is sufficiently certain when it shows the intention of the grantor as to what property is conveyed, and makes its identification practicable.” Andrews v. Murphy, 12 Ga. 431, “ If a surveyor, by applying the rules of surveying, can locate the land, the description is sufficient. A deed will be sustained if it is possible from the whole description to ascertain and identify the land intended to be conveyed.” 2 Devlin on Deeds, § 1012 etseq. Accordingly, where the owner of an irregularly shaped tract-of land containing 307 acres conveyed 200 acres, more or less, to-a grantee, and bounded it on the north by land of A, on the east by land of B, on the south by land of C,and on the west by land of D (the grantor), the description is not, as matter of law, so vague- and uncertain as to render the deed void.

(a) The deed conveys all the land from the point where the land, of A touches the land of the grantor to the land of B, and thence-to the land of C. The starting-point is either at the land of A or that of C. • A line drawn from either of these points to the other-point will show the line between the grantor and the grantee on the west.

(b) The fact that the deed calls for 200 acres, more or less, will make no difference. If the boundaries described in the deed take-in the entire 307 acres, the whole will pass to the grantee. Ray v. Pease, 95 Ga. 153, 4 Am. & Eng. Enc. L. (2d ed.) 763.

(e) Such a deed having'been properly recorded, and a mortgage^ given by the grantee to a third person to secure borrowed money also properly recorded, the sale by the administrator of the grantor of this land conveyed no title to the purchaser, and it was error in the court to refuse to grant a new trial.

2. Where-a levy had been made by virtue of a mortgage fi. fa, and a claim filed, and the claimant in aid of his claim filed an equitable petition setting up his right of subrogation for reasons-alleged in the petition, and on demurrer his equitable right was-stricken, which was the only equity alleged, it was error, over objection of the plaintiff in fi. fa., to try this alleged equitable petition in preference to the claim case, although it was marked filed a day in advance of the claim case. Such a proceeding deprived the plaintiff in fi. fa. of his legal right to the opening and conclusion in the trial of the merits of the claim.