Calhoun v. Ryals , 159 Ga. 35 ( 1924 )

Russell, C. J.,

dissenting. In June, 1910, Dr. J. E. Mobley, a citizen of Montgomery County, died, leaving five children and two grandchildren of one of his sons who had previously died. On January 15, 1910, Dr.' Mobley executed two deeds, one to his son R. EL Mobley, conveying to him “1300 acres of land, more or less, bounded on the north by the land of J. E. Mobley, on the east by the Georgia and Florida Railroad, on the south by the Altamaha and Oconee Rivers, and on the west by Oconee River and lands of Moses and Lambert’s Creek, including the residence of said J. E. Mobley.” The other deed conveyed to his daughter, Abbie R. Calhoun, “all that certain tract or parcel of land situate, lying, and being in the 275th dist. G. M. of Montgomery County, State aforesaid, containing 1027 acres, more or less, and bounded as follows: north by lands of J. E. Mobley and Mrs. Mary Johnson; east by Mrs. Mary Johnson, J. A. Hall, I. ,Q. Coleman; south by Altamaha River, and west by the right of way of the Georgia and Florida Railroad.” The grantor reserved to himself a life-estate therein. At the same time he executed deeds conveying to his granddaughter, Charlotte Mobley, a certain tract containing 147 acres, more or less; and to his grandson, J. H. Mobley, a tract containing 130 acres, more or less. Prior to this time the grantor owned and had long been in possession of a tract of land containing 2860 acres, more or less, of irregular shape, from which the tracts above described purported to have been cut; so that, after making the foregoing deeds, he still owned between 200 and 300 acres of land adjoining the foregoing tracts, and with them constituting his plantation as a whole. In 1912 R. H. Mobley made a deed of gift to his son, Robert Mobley, of 300 acres, more or less, of the 1300 acres which had been conveyed to him by J. E. Mobley. A daughter of J. E. Mobley brought this action to avoid the deeds heretofore referred to, and to cancel the deed made by R. H. Mobley to Robert Mobley as a cloud upon the title of the heirs of her father. The case was submitted to a jury, and they returned a verdict in her favor. A motion for a new trial was overruled, and the plaintiffs in error excepted to this ruling, as well as to rulings upon the testimony, to which exceptions were preserved pendente lite.

As will appear from the foregoing statement of facts, the decision in this case turns on whether the trial judge properly excluded the two deeds whereby J. E. Mobley conveyed to his son, R. H. Mobley, and to his daughter, Abbie R. Calhoun, the two tracts of land in which the plaintiff, Mrs. Ryals, claimed a one-fifth interest. It was held in Huntress v. Portwood, 116 Ga. 351 (supra), that “Where the owner of an irregularly shaped tract of land embracing approximately 307-% acres undertakes to convey a portion thereof by executing an instrument in the form of a deed which designates such portion as a parcel of land ‘containing two hundred acres', more or less,’ but does not with sufficient definiteness set. forth or indicate how it shall be cut off from the entire tract, or otherwise describe such portion so that its identity can be ascertained without resort to extrinsic proof as to the secret and undisclosed intention of the maker with regard thereto, no title to any part of such tract of laud passes to the person named in .the instrument as grantee.” In the case under consideration, as in that just cited, the difficulty is that J. E. Mobley did not specify any boundary line or lines between the land he intended to convey to his son and that which he intended to reserve. The instrument under consideration states that the land therein described is bounded on the north by J. E. Mobley, just as the purported deed in Huntress v. Portwood, supra, stated that the tract of land therein referred to was bounded on the west by land of the grantors; 'as to which this court held that “The words ‘on west’ certainly can not be said to indicate a boundary line, or enable any one to locate such a line.” In tire present case the writing (denominated as a deed) from J. E. Mobley to E. H. Mobley described the land as 1300 acres, more or less, and the land sought to be conveyed to Mrs. Abbie E. Calhoun as 1027 acres, more or less. As to this feature of the case the Supreme Court in the Huntress case, said: “It would not do to say it was the purpose of Absalom G. Evans and his wife to cut off from the whole tract exactly two hundred acres, or that the portion they intended to convey can be ascertained and separated from the balance of the tract by running a-line due north and south. It is obvious that a parcel of land containing about two hundred acres and bounded on the ‘north by land of E. I. Anderson; on east by lands of Daniel Evans, colored; [and] on south by land of Addison Ogletree,’ might be cut off from the entire tract by running divers straight lines across it. With a given starting-point on either the northern or southern boundary of this tract, it would be practicable to run a line cutting off precisely 200 acres. Without such a starting point, even this could not be done; and given such a starting-point, the line drawn would necessarily vary according to the significance which different persons undertaking to run the line might attach to the words, ‘containing two hundred acres, more or less,’ appearing in the instrument under discussion. This description as to quantity might easily be understood as referring to a parcel of land embracing any number of acres from 175 to 225. Accordingly, we affirm, without doubt or misgiving, that no surveyor, however expert, could take the description contained in the instrument just mentioned, and, by the aid of any proper extrinsic evidence, locate the precise body of land which the makers of that instrument intended to convey. Even if they and R. 0. Evans had' agreed upon a dividing line and understood perfectly how the same should run, this would not suffice; for a deed must itself contain descriptive words with respect to its subject-matter, such as will enable a third person to apply the same to the locus in quo without resorting to any secret and undisclosed intention on the part of the parties thereto. Whilst a deed wanting in this essential is susceptible of reformation, so as to effectuate the unexpressed intention of the parties, it can not, without such reformation, stand as a muniment of title. If Absalom G-. Evans and his wife actually agreed with R. 0. Evans upon a boundary line cutting off from the entire tract the particular portion thereof they desired he should have, the instrument signed by them should itself have disclosed that such was the fact, and also have contained such a reference to this line as would enable third persons to find and locate it. No authority need be cited in support of the proposition that parol evidence is inadmissible to add to or vary the terms of a deed, or other written instrument. Such evidence is admissible only for the purpose of applying language used in a deed to the subject-matter thereof.”

The ruling in that case has been followed in Luttrell v. Whitehead, 121 Ga. 699 (49 S. E. 691), Crawford v. Verner, 122 Ga. 814 (50 S. E. 958), Glover v. Newsome, 132 Ga. 797 (supra), Edwards v. Sands, 150 Ga. 11 (102 S. E. 426), and Jones v. Harris, 151 Ga. 129 (106 S. E. 555). The only description of land in the deeds in the present case is by natural boundaries and the names of adjoining landowners. There are no courses, metes, or bounds, nor any definitely stated starting-points; the names of the adjoining landovvners must be relied on as a necessary part of the description. The grantor is alleged to be the adjoining owner on the north; but no data being given by which the dividing lines between the tracts in question and other lands of the grantor can be determined, the description of the tract of land is fatally defective, and for that reason the deeds were void and were properly rejected as evidence.

The plaintiffs in error sought to aid the descriptive terms of the deeds by certain plats which were alleged to have been folded into each of the deeds executed by J. E. .Mobley, but which were not attached thereto. Nor was any reference made to these plats in either deed. I think the court properly rejected the plats. A deed to land in this State must be in writing and intrinsically contain the description of the property sought to be conveyed. In some cases a meager description may be aided by extrinsic evidence; but there must be sufficient description to disclose what the intention of the grantor was as to the quantity and location of the land with such certainty as that its identification is practicable. “One essential of a deed is that the description of the premises sought to be thereby conveyed must be sufficiently full and definite to afford means of identification. While it is not necessary that the instrument should embody a minute or perfectly accurate description of the land, yet it must furnish the key to the identification of the land intended to be conveyed by the grantor. If the promises are so' referred to as to indicate his intention to convey a particular tract of land,. extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description of property contained in' a deed is whether or not it discloses with sufficient certainty what the intention of the grantor was with respect to the quantity, and location of the land therein referred to, so that its identification is practicable.” Grawford v. Verner, supra. The plats alleged to have been placed in a package with the deeds in this case could not properly be used to aid the defective deeds, for the reason that they were not attached to the deeds and the deeds make no reference to any plat. The deeds afford no evidence whatever that they were made with any reference to the alleged plats. Plats, maps, surveys, etc., may be considered when they are attached to a deed, and especially when they are referred to in the deed; b.ut they are not admissible for the purpose of aiding a defective description when there is no reference to a plat in the deed. “In order to make a plat or map a part of a deed there must be a definite and certain reference thereto.” 18 C. J. 283, § 251. See also Thrasher v. Royster, 187 Ala. 350, 65 So. 796, 797; Wilson v. Hoffman, 115 La. 903, 40 So. 328; 13 Cyc. 548, § 7; 8 R. C. L. 1078, § 134; Nelson v. Brodhack, 100 Am. D. 328.

Upon the trial the plaintifEs in error amended their answer and prayed a reformation of the deeds in question. They except to the- failure of the court .to charge more fully upon the subject of reformation of deeds. This exception is without merit, because the judge gave the jury the general rules applicable to the issue involved; and if fuller instructions were desired, they should have been requested. Furthermore, the evidence as to the consideration of the deeds showed that the deeds were deeds of gifts without any valuable consideration; and since a voluntary deed can not be reformed in equity, the verdict returned by the jury on the- issue of reformation was demanded. See Civil Code, §§ 4636, 4569; Turner v. Newell, 129 Ga. 89 (58 S. E. 657). In the last-cited case it was held that “As a general rule equity will not, upon petition brought by the grantee in a voluntary deed, reform and correct the same.”

There was no error in decreeing that the defendant in error was entitled to one fifth of the land. J. E. Mobley had six children, or representatives of six, and therefore his estate must legally be divided into six equal shares; but the evidence upon the part of the plaintiff in the trial, which was uheontradicted, was sufficient to show that Charlotte and John H. Mobley, children of the deceased son, John Mobley, had received in advancements their interest in the land in question.

Under the pleadings and the evidence the jury seems to have reached answers to the questions propounded which were fully authorized; and since the rulings of the trial judge, as well as his instructions to the jury, were a fair and lawful presentation of the law, the result reached in the decree is not subject to exception.