Goldsmith v. White

Crawford, Justice. The plaintiff in error brought this suit against the defendant in error to recover fifteen acres of land, more or less, off of land lot number 254, in Dekalb county. The jury, under the charge of the court and the evidence, found against him, and he made a motion for a new trial, which the court refused, and he excepted. Both parties claim under one deed, and the dispute arises upon the following description contained in the original deed : “ Commencing at Anderson’s corner, near Dean’s mill pond, and running north to where the fence now stands until it strikes near the creek, within distance sufficient to set a fence following the creek. But reserving, however, the land on said east side as far as the back water shall cover from said Dean’s mill pond, until the line reaches the ford of said creek.” It is claimed by the plaintiff in the suit that there were two fences,'one on the east, the other on the west side of this pond, and that the real line was to run across the pond directly north, until it struck the fence on the west side; and by the defendant, that the line was to run to the fence on the east side which was only east of north from the beginning corner. Much testimony was introduced to explain the location of these fences and fields, and exactly where the line ran according to the fact and the deed. 1. It is insisted that the court erred in permitting certain witnesses to testify in reference to this line, because their testimony was at variance with the description set out in the deeds. The record discloses the fact, that the land in dispute [338] was conveyed by deed, and described therein by metes and bounds. The conveyance was made more than thirty years before the trial, and there was no error in allowing evidence to be introduced to show where the points named in the deed were, and that the particular plat or tract of land in dispute was not covered by or included within the boundaries named. 57 Ga., 113; 49 Id., 99; 20 Id., 689. 2. It is further alleged as a ground for a new trial that the judge erred in charging the jury that the legal effect of the deed from Wood to Mosely was not to convey the disputed land to the latter. The construction of this deed was matter for the court; and as by the description of the land it called for a fence on the east side of the creek, it could by no possibility refer to a fence on the west side. Besides, such a construction as claimed by the plaintiff would defeat the whole object of the grantor in protecting the east side of the creek, that he might thereby protect his pond and thus secure its benefits to the land reserved, and never intended to have been included in the conveyance. The very words of the deed were, that the line was to run only where the fence stood, “until it strikes near the creek,” and it nowhere says across, or even to the creek, but near the creek. The construction which the court gave to the deed was the only fair one which could have been given consistent with itself. It is true that if nothing else except the direction had been given, that would have been absolutely controlling and must have carried the line where the plaintiff claims that it was intented to have gone, that is north, but the whole description of the line must be taken together. 3. The plaintiff in error alleges that the judge improperly instructed the jury, even if the fence on the east side of the creek were the fence referred to, because the line of the fence which should have been considered, was that part of the same being the nearest to the creek, and was the northwest instead of the southwest corner. If that con [339] struction had been given to the deed, the whole line of fence from the southwest to the northwest corner, where it stood at the making of the deed would have been ignored, and there would have been no need of reference to it at all, except to say that the line should run from the Anderson corner direct to the northwest corner of this field and thence to the ford. In looking through the whole case, we find no error of law committed by the judge, and are of opinion that the evidence fully supports the verdict, Judgment affirmed.