DocketNumber: No. 4966
Citation Numbers: 161 Ga. 374
Judges: Beck, Gilbert
Filed Date: 12/16/1925
Status: Precedential
Modified Date: 1/12/2023
It appears from the description of the land contained in the plaintiff’s petition, as quoted in the statement of facts, that the land was imperfectly described as the northeast “portion” of lot No. 12, etc., and also as being “more fully” described in a deed from G. W. Cason to George Sims, of given date and recorded in the office of the clerk of the superior court. The answer of the defendant admits that he is in possession of a certain tract of land fully (italics ours) described in a deed from Grant, sheriff, to George H. Cason, and also in a deed from George W. Cason to George M. Sims, “which defendant presumes is the same land referred to in said paragraph No. 2” of the petition. This part of the answer must be construed by this court as meaning that the land sued for is “fully” described in the deed from Cason to Sims, and is the same land referred to in the second paragraph of plaintiff’s petition. With this admission in the answer of the defendant, the motion to set aside the judgment on the ground that the description of the property was too vague and uncertain to support the verdict and judgment is without merit.
There was no error in refusing to set aside the judgment for the reasons stated in the second ground of the motion, to wit, because “there is no specific or general prayer in the original petition or the amendment thereto praying for the recovery of the premises.” The action was to recover, during the period allowed for redemption, land which the petitioner claimed it had acquired by virtue of a sale under a power of sale contained in a security deed from G. M. Sims, the defendant Cason having acquired the same land by virtue of a sale under a tax execution issued against Sims. The petitioner prayed: (1) that the defendant be required to execute a quitclaim deed to the property; (2) that defendant be required to surrender the sheriff’s deed for cancellation; (3) that petitioner be put in the quiet and lawful possession of the premises; (4) for rents and profits; (5) for process. These prayers were sufficient for the relief sought.
The third ground of the motion is that the verdict did not authorize the judgment and decree of the court rendered, especially that part for the recovery of the premises in favor of the plaintiff. The verdict, construed in connection with the pleadings, was sufficient, as against the motion to set aside.
The fourth ground of the motion is that the judgment ren
The fifth ground of the motion complains that the judgment does not follow the verdict rendered and entered up in said case, and does not follow the plaintiff’s pleadings. The description of the land contained in the judgment substantially follows the description contained in the pleadings. The variance will be dealt with in the next succeeding paragraph. The verdict of the .jury is as follows: “"We the jury find verdict in favor of the plaintiff, and that defendant deed be canceled on payment of one hundred & ten dollars by the plaintiff.” The intendment of this verdict is to restore to the plaintiff the land described in the pleadings, and the judgment substantially followed the verdict, construed in connection with the pleadings.
The sixth ground of the motion to set aside complains that the court in rendering the judgment “interpolated certain language therein that is not authorized by plaintiff’s pleading in said case, by adding and interpolating theréin the following words of description, to wit: ‘A certain lot of land with improvements thereon consisting of a two-story frame dwelling in the Town of Demorest, said county, as follows’; also the following words, ‘said lot has a framed dwelling on same.’ It will be observed that paragraph 2 of the petition alleges that “the said George II. Cason is in possession of a certain lot of land with improvements thereon, consisting of a two-story frame dwelling in the town of Demorest, said county, described as follows.” Then follows the allegation as to a description of the land. Therefore the criticism that the judgment interpolated language unauthorized is not sustained by the record.
The court did not err in overruling the motion to set aside the judgment. Judgment affirmed.