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Lawskills.com Georgia Caselaw
WHITE et al. v. SPAHR.
17087.
Petition for injunction. Before Judge Edmondson. White Superior Court. January 28, 1950.
HAWKINS, Justice.
1. That which is most material and most certain in a description of land shall prevail over that which is less material and less certain; and whenever, in the description of land conveyed by deed, natural, visible, and ascertained objects and monuments are referred to as boundaries, they must govern, although neither courses nor distances, nor the computed content, correspond with such boundaries.
2. "A request to charge the jury must be legal, apt, and precisely adjusted to some principal involved in the case, and be authorized by the evidence." Rogers v. Manning, 200 Ga. 844 (2) (38 S. E. 2d, 724).
(a) The request to charge set out in the second division of the opinion failed to meet these requirements, and the court did not err in refusing it.
3. The description of land contained in a deed is not void for uncertainty if it furnishes a key sufficient to identify the land, and such descriptive terms as "being all the lands owned by [a named person] at the time of his death" and "known as the old William Allison place" furnish such a key.
4. Where the description of land contained in a deed is uncertain, but the land thereby conveyed forms a part of a larger tract previously owned by the grantors, reference may be made to prior deeds from the same grantors, conveying other portions of the larger tract, which make more certain the boundaries described in the latter deed.
(a) Where a deed describes land as being parts of certain numbered lots, and also contains a description of the tract of land by metes and bounds, calling for natural, visible, and ascertained objects and monuments, and such description by such metes and bounds includes a part of a lot not designated by number, such metes and bounds must govern.
W. A. White, H. J. White, and T. J. McConnell brought their petition in White Superior Court against H. G. Spahr, alleging in paragraph 2 of the petition that the Whites held legal title to, and that McConnell was in possession under bond for title from them of, all of lot of land No. 67 in the Third Land District of White County, except about three acres on the west side of the lot where Ernest Sims resided, and which three acres are described in a deed from the Whites to one Abernathy, and also except that portion of said lot which lies north of Dukes Creek, and one acre for Lawrence Graveyard.
The petition further alleges that the defendant claims a tract of land conveyed to him by Mrs. C. W. Hunter on July 11, 1935, being part of lots Nos. 62 and 63 in the Third Land District of said county; and gives the date and book where said deed is recorded.
It is alleged that the defendant holds no deed or title to lot 67 or any part thereof, and that the defendant has no right, title, or interest in or to land lot No. 67, but that he has gone on lot 67, across the original east and west line between said lot and lot No. 62, and cut and felled growing timber thereon to the injury and damage of the plaintiffs, and is threatening to continue to cut and appropriate to his own use the growing timber on lot 67; and the plaintiffs pray for process; for the recovery of damages for the timber alleged to have been cut and removed, for exemplary damages, that the defendant be restrained and enjoined from going upon or trespassing upon lot 67, and for general relief.
To this petition the defendant filed his answer, in which he denied that the plaintiffs held title to and were in possession of all of lot 67 save the excepted portions thereof described in the petition; and alleged that he held a warranty deed from Mrs. C. W. Hunter to the land in dispute, and that he, together with his predecessors in title, had been in peaceable, exclusive, uninterrupted, and actual possession of said land for a period of 89 years. He denied that he had gone upon and cut and removed any timber from lands belonging to the plaintiffs, and alleged: that he had cut some growing timber near the old Bart Allison home place, but alleged that said timber and the land upon which it grew had been in the possession of the defendant and his predecessors in title for 89 years; and alleged that the plaintiffs had no right, title, or interest therein, and were not entitled to possession thereof; that the plaintiffs well knew that the disputed area has been in the actual, peaceable, exclusive, and uninterrupted possession of the defendant and his predecessors in title since William Allison resided thereon in the year of 1857, and that a line from what is known as the Meade corner has been since that date recognized as the line by all adjoining land owners except the plaintiffs, and that until 1942, they had so recognized the line.
The defendant alleges that the title to the land in dispute should be decreed to be in him, and that the plaintiffs have no right, title, or interest therein; and he prays that the relief sought by the plaintiffs be denied, that the restraining order previously granted be dissolved, that title to the disputed area be decreed to be in the defendant, and for general relief.
On the trial the plaintiffs introduced in evidence: a bond for title from W. A. and H. J. White to T. J. McConnell, dated ------- day of December, 1919, embracing the land described in paragraph 2 of the petition; a deed from Idus Brewer, Receiver of James W. McMillan estate, to W. A. White and H. J. White dated Nov. 5, 1940, conveying all of lot 67 of originally Habersham County, but now White County, Georgia, except one acre owned by Dukes Creek Church and three acres on west side of said lot known as the H. N. Abernathy three-acre house lot; and it was stipulated by counsel for the parties that Chas. W. White and W. A. White had executed a bond for title to this property to J. W. McMillan, that he never completed payment of the purchase-price, and that Brewer was appointed receiver of his estate and sold his equity in the property to W. A. and H. J. White.
The plaintiffs also introduced in evidence:
A deed from James F. Redding and others to W. A. White and Chas. W. White, conveying all of lot 67 except 50 acres more or less included in what was known as Mercer Mine, and excepting one acre owned by Dukes Creek Church, this deed being dated day of November, 1919, and duly recorded.
A quitclaim deed from Henry Newton Abernathy to W. A. and Chas. W. White to "all of lot of land No. 67 in the 3rd land district of White County, Georgia, and containing 250 acres, except three acres on the west side of said lot No. 67, said 3 acres being that part of said lot on which said Abernathy now lives, and bounded and described as follows: beginning at a rock corner on the north and south line of said lot 67 near where the old road leading to the Lawrence Graveyard leaves the Cleveland and Hiawassee Road near the branch; thence in an easterly direction along said road a distance of 210 feet to a rock corner; thence north parallel with the north and south line of said lot 67 a distance of 630 feet to a rock corner; thence west a distance of 210 feet to a rock corner on the north and south original line of said lot No. 67; thence south along said original line a distance of 630 feet to the beginning corner."
The defendant introduced in evidence deeds as follows:
Deed from Obadiah Dick to John Fain, dated November 5, 1821, conveying "all that tract or parcel of land situated, lying, and being in State of Georgia, County of Habersham, Third District No. 67, containing 250 acres."
Deed from John Fain to James Gilleland, dated August 12, 1824, conveying land lot 67 in Third District of Habersham County, Georgia.
Deed from James Gilleland to William Powell, dated April 25, 1827, conveying 25 acres of lot 67 in the 3rd District of Habersham County, and particularly describing the 25 acres conveyed.
Deed from William Powell to Benjamin Allison dated April 25, 1828, conveying land described in the deed last above referred to.
Deed from R. L. Allison, as administrator of estate of Mrs. Julia A. Allison (who was widow of William Allison, who was son of Benjamin Allison), to G. B. Allison, dated November 5, 1912, conveying: "The lots or parcels of land lying and being in the 3rd land District of White County, Georgia, and known and designated as parts of lots Nos. 62, 63, and 66 in said District, and being all the lands owned by Mrs. Julia A. Allison at her death. This land is known as the old William Allison place and contains one hundred acres, more or less."
Deed from G. B. Allison to R. L. Allison, dated November 5, 1912, conveying all parts of lots of land Nos. 62, 63, and 66 in the 3rd land district of White County, Georgia, and containing one hundred acres, more or less, and being all the land owned by Mrs. Julia A. Allison at her death. This deed is to convey a one-half undivided interest in and to the above lands. The other one-half interest to remain in this grantor.
Deed from R. L. and G. B. Allison to Mrs. J. B. Sims, dated February 26, 1916, conveying all that tract or parcel of land lying and being in the 3rd district of White County and being parts of lots of land Nos. 66 and 63 in said 3rd District containing fifty acres, more or less, and described as follows: beginning at the ford of the branch known as the Ash Branch near where Bart Allison formerly lived; thence down said branch to a rock corner; thence a little west of north along the high ground to a rock corner known as the Meade corner; thence northwest a straight line to a rock on the side of the Cleveland-Hiawassee Road; thence in the same direction a straight line to a rock; thence on still in the same direction to a rock corner on the conditional line between this property and the Calhoun property; thence a conditional line the high ground in a westerly direction to the original line; thence south the original line to a rock corner known as the Ash corner; thence east along the original line to a conditional line between M. G. Ash and this property; thence with said conditional line to the beginning point. The mineral interest in that portion lying east of the Cleveland and Hiawassee Road is reserved and not herein conveyed.
Deed from Mrs. J. B. Sims to Mrs. A. G. Mickel, dated March 7, 1916, conveying the property described in the foregoing deed from R. L. and G. B. Allison to Mrs. J. B. Sims.
Deed from G. B. and R. L. Allison to Belle S. Meade, dated November 2, 1917, conveying all that tract or parcel of land lying and being in, commencing at a conditional corner running down Dukes Creek on the south bank of the original line following the original line west to a conditional corner made by G. B. and R. L. Allison to J. B. Sims; thence following the conditional line northwest between J. B. Sims and G. B. Allison and R. L. Allison to the conditional line between the Calhoun Mining Company and G. B. and R. L. Allison; thence following said conditional line between the Calhoun Mining Company and G. B. and R. L. Allison back to said beginning point. The above land is in part of lots Nos. 62 and 63 in the 3rd district of White County, Georgia, containing fifty acres more or less. All mineral on south side of the Cleveland and Hiawassee Road is reserved.
Deed from Belle S. Meade to C. W. Hunter, dated December 18, 1917, conveying all that tract or parcel of land and being in the 3rd land district of White County, Georgia, and more particularly described as follows: A portion of lot of land Nos. 62 and 63 in the 3rd District of said County and State bounded as follows: beginning at a rock corner on the west side of the Cleveland and Hiawassee Road at a point about 660 feet from where the branch known as the Allison Branch crosses said road (in a southerly direction from said branch), thence in a northwesterly direction to a rock corner at the ford of said Allison branch; thence down said branch in a northwesterly direction where said branch turns in a northerly and northeasterly direction; thence down northwest to a point on the conditional line on the northwest side of the property; thence in a northerly direction along said conditional line to a conditional corner on the south bank of Dukes Creek; thence down said Dukes Creek to the original line; thence up the ridge along said original line to a rock corner on the high ground of the ridge; thence to a rock corner on the east side of the Cleveland and Hiawassee Road at the northwest side of the old house place; thence in a northerly direction along said Cleveland and Hiawassee Road to the point of beginning. The above described property contains fifty acres, more or less, and is a part of the Julia A. Allison old place.
A proceeding in the Court of Ordinary of White County, Georgia, setting aside the property described in the foregoing paragraph to Mrs. C. W. Hunter as the widow of C. W. Hunter.
Deed from Mrs. Mary Hunter Burke (formerly Mrs. C. W. Hunter) to H. G. Spahr, dated July 11, 1935, conveying all that tract or parcel of land lying in the 3rd land district of White County, Georgia, and more particularly described as follows: Being a portion of lots of land Nos. 62 and 63 in said 3rd District and bounded as follows: beginning at a rock corner at the west side of the Cleveland and Hiawassee Road at a point about 660 feet from where the branch known as the Allison Branch crosses said road in a southerly direction from said branch); thence in a northeasterly direction to a rock corner at the ford of said Allison branch; thence down said branch in a northwesterly direction to where said branch turns in a northerly or northeasterly direction; thence due northwest to a point on the conditional line on the northwest side of the property; thence in a northerly direction along said conditional line to a conditional corner on the south bank of Dukes Creek; thence down said Creek to the original line; thence up the ridge along the original line to a rock corner on the high ground of the ridge; thence to a rock corner on the east side of the Cleveland and Hiawassee Road at the northwest side of the old house place; thence in a northerly direction along said Cleveland and Hiawassee Road to the point of beginning, containing 50 acres of land, more or less; being same property which was set apart to first party herein in the Court of Ordinary of White County as a twelve-months support out of the estate of C. W. Hunter, deceased, and this deed is made for the purpose of obtaining such support.
A quitclaim deed from J. L. Craig to H. G. Spahr, dated July 13, 1935, conveying property referred to and described in deed from Mrs. Mary Hunter Burke (formerly Mrs. C. W. Hunter) to H. G. Spahr, and reciting "this deed is made for the purpose of canceling a mortgage given by C. W. Hunter to J. L. Craig dated July 21, 1928, recorded Book 6, Page 301 o White County records, said mortgage having long since been full."
The defendant also introduced in evidence a large and a small scale plat of the lands claimed by him, which are made a part of the record.
Several witnesses were introduced, who gave conflicting testimony as to possession by the respective parties and their predecessors in title of the lands claimed by them.
The jury returned a verdict in favor of the defendant, and a decree, which is set out in division 5 of the opinion, was entered in his favor. To this decree the plaintiffs excepted pendente lite, and error is assigned thereon in the main bill of exceptions, upon the grounds that the decree is contrary to law, contrary to evidence, and without evidence to support it; that there were no pleading authorizing the court to decree a line fixed by the defendant, nor as called for in the said decree; and that the decree is contrary to law, in that it fixes a line between the lands of plaintiffs and of defendant different from the original land lot line between lots 62 and 67, which was and is the correct dividing line between said properties at the point in controversy.
The plaintiffs also filed their original and amended motions for a new trial, which the trial court overruled, and to these judgments the plaintiffs except.
(After stating the foregoing facts.) 1. It is contended by the plaintiffs that the verdict and decree in favor of the defendant should be set aside on the general grounds of the motion for a new trial, and we will first dispose of this question.
It appears from the record in this case that the defendant's deed does not refer to lot No. 67, and it is contended by the plaintiffs that, this being true, he can have no valid claim to any part of lot 67.
It is contended by the defendant that, while his deed calls for parts of lots 62 and 63, by following the boundaries given in the description of the land in his deed and the physical monuments therein referred to, a portion of lot No. 67 is included therein.
This court will take judicial cognizance of the fact that lots 62, 63, 66 and 67 of the Third Land District of White County, Georgia, are in the shape of a square, that they contain 250 acres each, and that lot 67 is south of lot 62. Bridges v. Brackett, 205 Ga. 637, 640 (54 S. E. 2d, 642).
By reference to the plats appearing in the record, and to the evidence adduced upon the trial, it appears that the land in dispute consists of approximately 10 or 10 1/2 acres, located in the northern part of lot 67, and that the dispute as to the line arises from the following portion of the description contained in the defendant's deed, and in the deed of his immediate predecessor in title: "thence up the ridge along the original line to a rock corner on the high ground of the ridge; thence to a rock corner on the east side of the Cleveland and Hiawassee Road at the northwest side of the old house place." No other boundary as given in the defendant's deed is in dispute. It is not contended that the boundary of the defendant's land does not follow Dukes Creek in land lot No. 62 until it reaches the original south line of said lot, which is the north line of lot 67. The defendant contends that, after Dukes Creek reaches the original line, the boundary as called for by the deed, "thence up the ridge along the original line to a rock corner on the high ground of the ridge," follows the original line only a short distance, and then follows "up the ridge (but not along the original line) to a rock corner on the high ground of the ridge," which he designates as the Meade corner, and describes it as being a rock sitting in the ground, and located on the high ground of the ridge, and extends 10 inches above the ground on the north side, on the south side 9 inches, on the west side 7 1/2 inches, and the east side 5 1/2 inches wide, and that from this rock the line runs in a northwesterly direction "to a rock corner on the east side of the Cleveland and Hiawassee Road at the northwest side of the old house place, thence in a northerly direction along said Cleveland and Hiawassee Road to the point of beginning--containing 50 acres of land, more or less." It was further testified by the defendant that by no other way, and by following no other course, can the location of the "corner on the east side of the Cleveland and Hiawassee Road at the northwest side of the old house place" be reached; and that, if these physical boundaries and monuments as called for in the deed be followed, they necessarily include the portion of lot 67 claimed by him.
It is contended by counsel for the plaintiffs that, since the defendant's deed described the line in question as thence up the ridge "along the original line to a rock corner," the line could be run in no other direction than "along the original line" between lots 62 and 67 until it reached the point called for in the deed, to wit, a rock corner on the high ground of the ridge, and that the court should have instructed the jury that the line could be run only "along the original line" between these two lots, and in no other direction, thus excluding any part of lot 67.
In support of this position counsel for the plaintiffs rely upon the decisions of this court in Miller v. Rackley, 199 Ga. 370 (34 S. E. 2d, 438), Heatley v. Long, 135 Ga. 153 (68 S. E. 783), and Thurmond v. Thurmond, 179 Ga. 831 (177 S. E. 719). It is true that in these cases it was held: "The construction of an unambiguous deed, including the determination of the quantum of estate thereby conveyed, is a question of law for the court; and no attack being made on the validity of the deed, it is the duty of the court to instruct the jury what is its legal effect as determined by him." As we view this case, this principle has no application here, for the reason that the question presented is not one involving the quantum of the estate conveyed by the deed, but the main and controlling question is the proper location of the line called for by the deed, and this presents a question of fact which must be determined by the jury, in the light of the following legal principles which have been announced by this court. In Harris v. Hull, 70 Ga. 831, 840, it is said: "What is most material and most certain in a description shall prevail over that which is less material and less certain. 'Thus courses and distances shall yield to natural and ascertained objects.' 'Indeed, it seems to be a universal rule that course and distance must yield to natural, visible and ascertained objects.' This rule is founded 'upon the legal presumption that all grants and conveyances are made with reference to an actual view of the premises by the parties thereto.' This presumption is strengthened in this case by the fact that an actual view of the premises was had before the conveyance was taken. Again, 'whenever in the description of land conveyed by deed, known monuments are referred to as boundaries, they must govern, although neither courses nor distances nor the computed contents correspond with such boundaries.' " See also Barrett v. Dodd, 206 Ga. 840 (59 S. E. 2d, 395), and cases there cited. While the deed here under consideration describe the line in question as extending "along the original line," this refers to a course only and that part of the description, "thence up the ridge . . . to a rock corner on the high ground of the ridge," refers to natural, visible, and ascertainable objects, and these are more material and more certain and must prevail over the less material and less certain "the original line." Nor is the fact that the deed here under consideration describes the land as being in lots 62 and 63 absolutely controlling so as to exclude any land in lot No. 67, for in Thompson v. Hill, 137 Ga. 308, 315 (73 S. E. 640), it was said that "a reference to a number on a plat is not sacrosanct, regardless of everything else in the deed"; and attention was there called to the decision of this court in Summerlin v. Hesterly, 20 Ga. 689 (65 Am. D. 639), where the reference to the entry of levy and in the sheriff's deed to a number of the lot was rejected as inaccurate, leaving the remainder of the description to stand; and to the case of Johnson v. McKay, 119 Ga. 196 (45 S. E. 992), where it was held that the general description of property in a mortgage controls over a recitation that the land was located in a lot of a certain number. Here, as in Thompson v. Hill, supra, the property is further described as: "Being same
property which was set apart to first party herein in the Court of Ordinary of White County as a twelve month's support out of the estate of C. W. Hunter, deceased," thus furnishing an additional key by which to identify the land. There was testimony by and in behalf of the defendant, by other witnesses, that both he and his immediate predecessors in title, Mr. and Mrs. C. W. Hunter, had been in actual possession of this land since his predecessors obtained their deed thereto in December, 1917, and up until the time of the filing of the present petition on July 6, 1946, cutting and removing firewood, timber, and pulpwood therefrom. While there was conflicting testimony offered in behalf of the plaintiffs, the jury found in favor of the defendant, and there was ample evidence to support this finding. The general grounds of the motion for a new trial are, therefore, without merit.
2. The first ground of the amended motion for a new trial complains of the refusal of the trial court to give in charge to the jury the following written request: "You are instructed that courts and juries are bound to take notice of the number of acres contained in original land lots and the location of their lines without the necessity of offering evidence in support of such facts, and in this connection this Court and Jury are bound to take notice of the fact that land lots 67 and 62 in the Third Land District of originally Habersham County, now White County, Georgia, join each other and are divided by what is termed in law 'an original line' running east and west, and in this connection you are further instructed that where a deed, as in the case of the deed under which the defendant claims title, calls for the original line or a point on the original line of these two lots it must be construed to mean the original line between said lots and where such a deed calls for a point on the original line and then further reads 'thence along the original line to another point' it must also be construed to mean along that original line until the other point called for in the deed is actually reached and you would not be at liberty to construe the deed to mean that the line runs along the original line for a short distance and then leaves the original line to go in some other direction and to some other point not called for in the deed."
The charge requested was not in accord with the principles announced in the preceding division of this opinion, and the trial court did not err in failing so to charge the jury. Moreover, the request to charge was not properly adjusted to the contentions of the parties, for in the last line thereof the following appears, "and to some other point not called for in the deed." The defendant contended that "a rock corner on the high ground of the ridge" was the point called for in the deed, and that it could not be reached by following the original line, and there is no evidence in behalf of the plaintiffs that there was any such point, rock, or high ground of the ridge on the original line.
3. The second ground of the amended motion for a new trial complains of the admission in evidence of a deed containing the following description: "Parts of lots Nos. 62, 63, and 66 in said District, and being all the lands owned by Mrs. Julia A. Allison at her death. This land is known as the old William Allison place and contains one hundred acres, more or less"--upon the ground that the description was not sufficient to identify any particular land, and if the part referred to as the property owned by her (Mrs. Julia A. Allison) at the time of her death and as the William Allison place would be sufficient to furnish a key, there was no evidence to complete the transaction, by which it could be determined with any degree of definiteness what that particular land was. As to the first ground of the objection, this court has many times held that a description of real estate is not void for uncertainty if it furnishes a key sufficient to identify the land, and that such descriptive terms as "being all the lands owned by" a named person at the time of his or her death, and "known as the old William Allison place," furnish such a key. Allen v. Lindsey, 139 Ga. 648 (77 S. E. 1054); Knighton v. Hasty, 200 Ga. 507 (37 S. E. 2d, 382); Marsh v. Baird, 203 Ga. 819 (2-a) (48 S. E. 2d, 529). An examination of the evidence in this case discloses that the second ground of objection is without merit.
4. In the third ground of the amended motion for a new trial the plaintiff movants complain of the admission in evidence of a warranty deed from R. L. Allison and G. B. Allison to Belle S. Meade, dated November 2, 1917, conveying "all that tract or parcel of land lying and being, commencing at a conditional corner running down Dukes Creek on the south bank of the original line following the original line west to a conditional corner made by G. B. and R. L. Allison to J. B. Sims; thence following the conditional line northwest between J. B. Sims and G. B. Allison and R. L. Allison to the conditional line between Calhoun Mining Company and G. B. and R. L. Allison; thence following said conditional line between the Calhoun Mining Company and G. B. and R. L. Allison back to said beginning point. The above land is part of said lots 62 and 63 in the 3rd district of White County, Georgia, containing 50 acres more or less"--which deed was objected to on the ground that it showed on its face that it was confined to lands located in land lots 62 and 63, was irrelevant and immaterial, did not purport to convey any part of lot 67, and did not call for any Meade corner or any high ground, or anything that would lead to it. Complaint is also made of the ruling admitting the deed, upon the same ground and upon the further ground that this ruling of the court amounted to an expression of opinion to the jury that this deed might contain the land in controversy, and if it did, the defendant had the right to elect to claim under it.
5. The verdict returned by the jury in this case was: "We, the Jury find in favor of the defendant." The decree entered by the trial court was as follows:
"The jury having found a verdict against the plaintiff and in favor of the defendant in the case and considering the pleading, stipulations, evidence, and facts in the case it [is] considered, ordered, adjudged and decreed by the court, that the verdict of the jury be and the same is hereby made the judgment and decree of this court, and that the line as contended for by the defendant be and the same is hereby made the dividing line between the parties in this case, and as set forth and shown on the plat hereto attached and made a part of this decree, and said dividing line 'Begins at a point in the center of Dukes Creek directly under the bridge on the old Cleveland-Hiawassee Road, and running down said Dukes Creek to where the lot line between land lots 62 and 67, in 3rd land district of White Co., Ga., crosses said Creek, being a point in center of said Creek between a mound of rock on the west bank and a 36 sycamore on east bank; thence west 3.00 ch. to a projecting rock, 2 links South of a 24 white pine; thence S. 45 W. 2.05 ch. to a 6 yellow pine; thence up the ridge and following the high ground, as follows: S. 66 W. 1.00 ch. to a 4 maple, due West 2.87 ch. to. a large pine stump, S. 75 W. 1.02 ch. to a 5 Spanish Oak; S. 55 W. 2.87 ch. a 6 yellow pine, S. 65 W. 1.70 ch. to point. S. 55 W. 2.58 ch. to a black jack, S. 50 W. 1.26 ch. to a rock, the old Meade corner; thence N. 51 W. 9.94 ch. to the old rock corner on ,the bank of the Cleveland-Hiawassee Road; thence along said road N. 35 E. 6.76 ch. to a point; thence containing [continuing] along said road N. 20 E. 7.50 ch. to the East Corner of the old Lambdin tract; thence N. 40 W. 4.18 ch. to the Allison branch; thence down said branch N. 50 W. 4.27 ch. and on with the branch N. 40 E. 3.38 ch. thence leaving the branch N. 15 E. to Dukes Creek near the deep hole; thence down Dukes Creek to the point of beginning, being a part of land lots 62 and 67 of the 3rd District of White County, Ga., formerly Habersham Co. The land in dispute being shown on said plat by lines or what is known as shading and title thereto is decreed to be in defendant H. G. Spahr, and the plaintiffs are permanently restrained and enjoined from going upon said land or trespassing thereon, and the claim of defendants [plaintiffs] to said land is decreed to be invalid, and the title to the said disputed area is by this decree vested in H. G. Spahr.
"The restraining order against defendant is dissolved and plaintiffs are restrained and enjoined from molesting or interfering with defendant's possession and title to said land.
"Let the defendant, H. G. Spahr recover $-------- costs for use of officers of courts against plaintiffs W. A. White, H. J. White, and T. J. McConnell."
To this decree the plaintiffs excepted on the grounds that there were no pleading and no evidence authorizing the court to decree a line as called for in said decree.
In this case there is no evidence and no pleading as to many of the courses, distances, angles, and degrees of different portions of the line described in the decree, or as to many of the physical monuments therein referred to. The plat introduced by the defendant contains no such minute description as that included in the decree, and there being neither evidence nor pleading to support the same, it cannot lawfully stand as rendered. Milner v. Mutual Benefit Building Assn., 104 Ga. 101 (30 S. E. 648); Davis v. Flowers, 154 Ga. 260 (114 S. E. 200); Greenwood v. Greenwood, 173 Ga. 343 (160 S. E. 392); Barbee v. Barbee, 201 Ga. 763, 767 (supra). Direction is given, therefore, that the decree in this case be amended by striking that portion thereof beginning with the words: "and said dividing line 'Begins at a point in the center of Dukes Creek'," and ending with the words, "being a part of land lots 62 and 67 of the 3rd District of White County, Ga., formerly Habersham Co.," so that the decree as thus amended will read as follows:
"The jury having found a verdict against the plaintiffs and in favor of the defendant in the case and considering the pleading, stipulations, evidence, and facts in the case it is considered, ordered, adjudged and decreed by the court, that the verdict of the jury be and the same is hereby made the judgment and decree of this court, and that the line as contended for by the defendant be and the same is hereby made the dividing line between the parties in this case, and as set forth and shown on the plat hereto attached and made a part of this decree. The land in dispute being shown on said plat by lines or what is known as shading and title thereto is decreed to be in defendant H. G. Spahr, and the plaintiffs are permanently restrained and enjoined from going upon said land or trespassing thereon, and the claim of plaintiffs to said land is decreed to be invalid, and the title to the said disputed area is by this decree vested in H. G. Spahr.
"The restraining order against defendant is dissolved and plaintiffs are restrained and enjoined from molesting or interfering with defendant's possession and title to said land.
"Let the defendant, H. G. Spahr recover $-------- costs for use of officers of courts against plaintiffs W. A. White, H. J. White, and T. J. McConnell."
As thus amended, the decree will conform to both the evidence and the pleading.
Judgment affirmed with direction. All the Justices concur.
Wheeler, Robinson & Thurmond, for plaintiffs.
5. Where there are neither pleading nor evidence to support a decree, it cannot lawfully stand. MAY 10, 1950. REHEARING DENIED JUNE 16, 1950.
Saturday May 23 06:21 EDT


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