Rowland v. Mathews , 1922 Ga. LEXIS 181 ( 1922 )

Hines, J.

(After stating the foregoing facts.) The court takes judicial cognizance of the fact that land lot No. 61 in the sixth district of Crawford county, Georgia, contains 202 1/2 acres, and is in the form of a square. Huxford v. Southern Pine Co., 124 Ga. 181 (3), 187 (52 S. E. 439); Payton v. McPhaul, 128 Ga. 510, 514 (58 S. E. 50, 11 Ann. Cas. 163). The devise by the testator to his son, H. C. Mathews, of .75 acres of land lying and being on the east side of land lot No. 61, is sufficiently certain to embrace such a parallelogram as would result from‘drawing a line across the entire lot, parallel with its eastern boundary, so as to cut off 75 acres. Gress Lumber Co. v. Coody, 94 Ga. 519 (21 S. E. 217); Vaughn v. Fitzgerald, 112 Ga. 517 (2), 519 (37 S. E. 752); Payton v. McPhaul, supra; Osteen v. Wynn, 131 Ga. 210 (62 S. E. 37, 127 Am. St. R. 212) ; Phillips v. Paul, 148 Ga. 104 (95 S. E. 969).

The devise to his daughter, Clyde B. Mathews, of 25 acres, being in the center of land lot No. 61, bounded east by land given to her brother, Ii. C. Mathews, and west by land gwen to her sister, Maude B. Mathews, is not so definite and clear as is the description of the land given to the son. This tract is described, in part, as “ being in the center of land lot No. (61) sixty-one.” Center is here used not in its strict and scientific sense but in the sense of middle, and as something between two other objects. In every-day speech wel often refer to an object between two other objects as the one in the center, although such object is not at the midpoint. It is in this sense that the word is used in this devise. If this were the sole description of this tract, it would mean a circle, square, or parallelogram whose midpoint would be-the geometrical center of the land lot; but other boundaries of this tract are given. It is bounded on the east by the land given to the brother, EL C. Mathews, which is fully and definitely described, as we have shown above. It is likewise described as bounded on the “ west by land given to her sister, Maude B. Mathews.” It is impossible to locate this tract of 25 acres in the center of the land lot, in the strict sense of that word, and have it bounded on the east by the lands of H. C. Mathews, and on- the west by the land of complainant. Treating this word as used in its loose, colloquial sense, the difficulty is relieved. If used in its strict sense, then this particular description would be repugnant to the general description of the land devised, and would have to be rejected. Bejecting the part of the description which locates this tract in the center of the land lot, and. adopting the above rule applicable to the location of a given number of acres to be cut from the side of the land lot, we can arrive at the proper location of this tract. The eastern boundary being given, the same being a straight line across the land lot from north to south, this tract would consist of such a parallelogram as would result from drawing a line across' the lot parallel with this eastern boundary, so as to cut off 25 acres. So by either treating this word as used in the sense of between, or, if used in its strict sense, by rejecting the particular description as repugnant to the general description of the land in this devise, we can locate it.

However, we are not' concerned with the proper location and description of the tract given to the daughter, Clyde B. Mathews.

The tract given to the petitioner is described as “ 25 acres land, west side land lot (No. 61) sixty-one, and being all of said lot except tract including the fish-pond about — acres, and the two tracts given to her brother and sister, H. C. and Clyde B.” It is insisted that under this description only 25 acres of land were given to petitioner. This would be true, beyond doubt) if the description had consisted only of 25 acres of land on the west side of this land' lot. In that case it would have been such a parallelogram as would result from drawing a line across the lot parallel with its western boundary so as to cut off 25 acres. There are other descriptions given. The land devised to petitioner is described as “ being all of said lot except tract including the fish-pond about — acres, and the two tracts given to her brother and sister, TI. C. and Clyde B.” Here is a general description of the land devised to the petitioner. The tract of land given to her embraces all of the land lot except the three tracts therein described. If the petitioner got only 25 acres of this land, she would not get all of the lot after taking out the three tracts excepted in the devise to her. The number of acres in the tract including the fish-pond is not given. The parol evidence on this subject discloses that the fish-pond embraces less than an acre of land, and there is no proof .that there was a tract known as the fish-pond tract of any given number of acres. -If only 25 acres were cut oil for the petitioner, on the west side of this Jot, it would not reach the 25 acres of Clyde B. Mathews. This would be an impossibility. The land of the petitioner is bounded on the east by the land given to Clyde B. Mathews. The general description of the tract given to petitioner is- that it includes all the land lot except the excepted three named tracts. She would not get all of this lot, after deducting these three exceptions, if she were only given 25 acres on the west side of the lot. The clause as to the quantity of the land is simply a part of its description. Kendall v. Wells, 126 Ga. 343 (55 S. E. 41). The particular description of this lot as containing 25 acres is a false description of the tract given to the petitioner. As such it should be rejected as surplusage, under the maxim, “falsa demonstratio • non nocet.” Johnson v. McKay, 119 Ga. 196 (45 S. E. 992, 100 Am. St. R. 166). Bejecting this particular description, which can not be applied to the tract of land given to the petitioner, and applying the general description thereof, the plaintiff is entitled to all of said land lot except the three named tracts. This would give her 100 acres on the west side of the lot. This construction is in consonance with the declared purpose of the testator. He had been twice married. By his first wife he had three children. By his second wife he had two children. He owned two land lots, being’ 61 and 62. ITe declared his intention to give to his three children by his first wife laud lot No. 61. This intention seems to have been carried out by his will. Hnder the above construction he carried out this purpose, with the exception of the fish-pond, which was close to his residence, which was on lot No. 62, and which exception is void for lack of sufficient description.

So we think the court erred in directing a verdict under the pleadings and evidence for the defendant.

Judgment reversed.

All the Justices concur.