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

Per Curiam.

The controlling question in the case arises under , the grounds of the motion for a new trial, and is as to the sufficiency of the two deeds executed by J. E. Mobley, one to his son E. H. Mobley, and the other to his daughter Mrs. Abbie Calhoun. -In his rulings on the admissibility of evidence and in his charge to the jury the judge held both deeds in their present form to be void on account of insufficient description of land attempted to be conveyed. The descriptive clauses in each deed were sufficient, and the judge erred in holding the deeds void. The deed to Mrs. Calhoun purported to convey the whole of a “tract of land” containing 1027 acres, more or less, and gave as boundaries of' the “tract” certain natural streams and lands of adjoining proprietors, one of whom was the grantor himself. This furnished a key by which the descriptive averments contained in the writing could be applied by extraneous evidence. If the grantor had acquired this tract separately from his other land by grant from some other person, it is plain that a deed of conveyance by him giving déscriptive averments as contained in this deed would show his intent tó convey that tract, and 'could be applied to the premises by extraneous evidence. It is equally clear that where the grantor owning a large body of land had, prior to execution of the deed, caused it to be surveyed and divided into separate smaller tracts and marked the boundaries of each on the land, his deed conveying one of them, by descriptive averments as contained in the deed to Mrs. Calhoun mentioned above, could be applied by extraneous evidence as to such facts. There was extraneous evidence of the character mentioned, sufficient to apply the descriptive terms in the deed to the land intended by the grantor to be conveyed. The evidence tended to show that prior to the making of the deed the grantor had caused the entire tract to be surveyed into five separate tracts, and lines of each marked by the surveyor, and that the north line of the tract conveyed to Mrs. Calhoun was the south line of another of the five tracts which on the day the deed was made was conveyed by the grantor to one of his grandchildren. When this is taken into consideration it comports with the statement in the deed to the effect that the land is bounded on the north by lands of the grantor, and makes definite the line of division between the land intended to be conveyed to Mrs. Calhoun and the tract north of that which the grantor did not convey to her. This makes the case entirely different from ‘the case of Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513), and eases following that decision, in which, there was merely an effort to carve out .of a larger tract of land a portion thereof, without extraneous proof that the lines had been marked out, or furnishing other data by which the line of division between the land intended to be granted and the other portion of the larger tract could be ascertained. All that is here said is supported by the decision in Glover v. Newsome, 142 Ga. 862 (83 S. E. 939), nor does what is here said conflict with the ruling in Glover v. Newsome, 132 Ga. 797 (65 S. E. 64). The deed held to be insufficient in that case referred to “lot No. 3,” but, in addition to' that recital in the deed, the decision made special reference to-the failure of the deed to show in what town, county, or State the land was situated. If the deed had been definite as to these matters, the decision would no doubt have been different. The papers involved in McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655), did not refer to a “lot” or “tract” of land, but only to a stated number of “acres, more or less,” in a given lot and district.

All that is said above also applies to the contemporaneous deed executed by the same grantor to R. H.' Mobley. In this view both deeds were sufficient without reformation, and it becomes unnecessary to deal with the question as to the right of the defendants to reform a voluntary deed. It was erroneous to refuse a new trial.

The ruling announced in the second headnote does not require elaboration.

Judgment reversed.

Russell, G. J., dissents. Hines, J., disqualified. The other Justices concur.