Mull v. Allen , 202 Ga. 176 ( 1947 )

A deed wherein the description of the property sought to be conveyed is so vague and indefinite as to afford no means of identifying any particular tract of land is inoperative either as a conveyance of title or as color of title. Since the plaintiff relied for a recovery upon such a deed, the trial court did not err in granting a nonsuit.

No. 15762. APRIL 19, 1947. Mull brought an action for land against Allen, seeking to recover a small triangular parcel of land, described in the petition as follows: "Commencing at a stake corner on State Highway No. 5, thence southeast 66 degrees, 198 ft. to what is known as Watkins Road; thence a northwest direction along and with said Watkins Road 288 ft. to State Highway No. 5; thence along and with said Highway No. 5, 150 ft. to the beginning point, and said tract of land being a triangle."

On the trial the plaintiff sought to show title to the land in dispute, relying upon a deed executed to him in 1944, which contained the following description: "All that tract or parcel of land lying and being in 7th District and 2nd Section of Fannin County, and being part of Lots Nos. 64, 65, 44 and 45, of said District and Section, and described as follows: Beginning at a point, approximately two (2) feet from Earl Ballew's garage and running Northeast the old Morganton-Ellijay road to a conditional stake corner at the Maple Swamp; thence along the settlement road in a Southeasterly direction until it reaches the North-South original line; thence along the original line to near a white oak tree; thence in a Southeasterly direction to the original East-West line and along this line to the top of Long Mountain, between Lots Nos. 64 and 45; thence South along the top of Long Mountain, the water shed marking the course of the line to a persimmon bush corner; thence West to the original land lot line between land lots No. 64 and 65; thence along said original line to a locust stake near a spring; thence diverging in a semicircular shape and the course of the line marked by trees, fully described in a deed from Margaret Bailey to John B. Tipton, said line converging with the original line at the Northwest rock corner; thence along the West original line to the branch; thence Northeast with the meanderings of the branch to the fence across the hill in a Northwest direction and along with this fence to the beginning point near Earl Ballew's garage on the old Morganton-Ellijay road, said tract containing 120 acres, more or less."

There was some evidence offered by the plaintiff to the effect that the property described in the petition was embraced within the description contained in the deed. The plaintiff testified: "I note the deed which you exhibit to me, being deed from H. R. Hackney to me, and I have heard you just read the description of the property set out in my petition in this case. That is a description of the very property I bought and that is the property in dispute in this case. That is a part of the property I bought, and it is the property in dispute now." Another witness testified: "I am familiar with the tract of land, a description of which you have just read me from the petition, and which the plaintiff alleges he is the owner of and holds title to. . . The tract of land, the description of which you have just read me was embraced in the tract of land that I was in possession of as one of these grantors. It is embraced in that description you have just read me." Other witnesses offered by the plaintiff testified that they were unable to state whether the land described in the petition was embraced within the description contained in the plaintiff's deed. The undisputed evidence showed that the land in dispute is woodland, and that neither the plaintiff nor his predecessors have had actual possession of this tract. At the conclusion of the plaintiff's case, the trial court granted a nonsuit. The exception is to this judgment. 1. This case turns on the quoted description contained in the plaintiff's deed. We may concede, as is urged by counsel for the plaintiff, that the evidence was sufficient to show that the tract of land sued for is embraced within the land purportedly conveyed by the plaintiff's deed. Still we think the plaintiff's evidence insufficient to show title to the property in controversy, for the deed upon which he relies is void because of in definiteness of description. "The description of the land in a deed must be sufficiently certain to afford means of identification. A deed purporting to convey land which is so indefinite in description that the land is incapable of being located is inoperative either as a conveyance of title or as color of title. . . A deed is not invalid where the description is imperfect, if the instrument refers to extrinsic data by means of which the land may be identified Likewise an ambiguous descriptive clause may be aided by aliunde evidence. But such imperfect or ambiguous descriptions must not be confounded with a description utterly lacking in definiteness. A deed which fails to describe any particular land or to furnish any key to the confines of the land purporting to be conveyed is void."Luttrell v. Whitehead, 121 Ga. 699 (49 S.E. 691).

The description in the plaintiff's deed is lacking in a key "to the confines of the land purporting to be conveyed." It will be noted that the plaintiff's deed, after describing the tract as "beginning at a point, approximately two feet from Earl Ballew's garage," undertakes to mark the course of the lines as follows: "thence along the original line to near a white oak tree; thence in a southeasterly direction to the original East-West line," etc. In Crawford v. Verner, 122 Ga. 814 (50 S.E. 958), the court held the following description to be too indefinite to operate either as a conveyance of title or color of title: "All that tract or parcel of land containing six acres, more or less, situate in Franklin County on Towns Creek, beginning at a white oak on east bank of Towns creek, thence north 38 w. to a pine corner, thence 58 w. to a white oak, thence down said creek to beginning point." In holding that description to be void, the court in that case used language directly applicable to the instant case: "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 premises 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. Andrews v. Murphy, 12 Ga. 431. Thus, if the tract be described as being known by a given name, or if reference is made to a more particular description in another deed or survey and plat, the instrument is prima facie good as a conveyance of title, and extrinsic evidence is admissible for the purpose of applying it to its subject-matter if there is in point of fact a tract of land which corresponds to the description given in the deed. And where it can be gathered from the words employed in a deed that the intention of the grantor was to convey the whole of the tract owned by him, even a vague description of the same will suffice, if by competent parol evidence its precise location is capable of ascertainment and its identity can thus be established; but if the description is so indefinite that no particular tract of land is pointed out by the instrument itself, the description must be held so defective as to prevent the instrument from operating as a conveyance of title. Huntress v. Portwood, 116 Ga. 351, 356 (42 S.E. 513), and cases cited. The same certainty of description which is requisite to constitute an instrument a conveyance of title is required in an instrument which is relied on as color of title.Luttrell v. Whitehead, 121 Ga. 699 (49 S.E. 691); Pitts v. Whitehead, 121 Ga. 704 (49 S.E. 693). The description in the deed offered in evidence in the present case was totally inadequate; the land was not described as a known tract, nor was its shape indicated, nor metes and bounds given, nor the names of the adjoining landowners on the different sides mentioned, nor were there any descriptive words employed which could serve to identify or locate the land." See also Gould v. Gould,194 Ga. 132 (21 S.E.2d 64), where the court held the following description insufficient: "All of that certain portion of land on Saint Simons Island, Glynn Co., Ga., bounded as follows, viz.: starting at an oak tree at a point above Ebow Landing on Dunbars Creek, hence along said creek in a northwesterly direction six hundred and fifty (650) feet to a marsh, hence in an easterly direction six hundred (600) feet to a cedar post, then south six hundred (600) feet to a cedar post, then westerly to the point of starting, containing three hundred and sixty thousand (360,000) feet, more or less."

Since the plaintiff, who showed no prior possession of the premises, failed to prove title, by prescription or otherwise, the trial court did not err in granting a nonsuit.

Judgment affirmed. All the Justices concur.