Blackwell v. Partridge

Hines, J. The defendants insist that a new trial should be granted on the ground that, under the uncontradicted evidence, they had shown a good title by prescription under color of title based upon a deed from Mrs. A. M. Dawson, as guardian of Annie Remsen, now Mosley, to T. II. Remsen Jr., unde^ whom they claim, dated Oct. 6, 1908. The evidence conclusively shows possession of the premises in dispute by T. H. Remsen Jr. for more than seven years prior to the institution of this suit. But whether the above deed covers the premises in dispute is not shown by the uncontradicted evidence in the ease, but depends upon a question of fact which can only, be determined by the jury. So we can not determine as a matter of law, under the facts of the case, that a verdict is demanded in favor of the defendants on this ground. The plaintiff claims title to a six-sevenths undivided interest in the premises in dispute, consisting of a one-seventh interest therein which she claims as heir at law of her father, Thomas II. Remsen Sr., deceased, who died seized and-possessed of the premises, and of a five-sevenths interest therein which she claims as purchaser from other heirs of her deceased father. For the purpose of showing title out of the plaintiff the defendants offered in evidence the record.of the year’s support set aside to the widow and two minor children of the deceased. The return of the appraisers described the property set aside as “ one vacant lot, containing one acre, in the Town of Lincolnton.” The trial judge excluded this evidence on the ground that this description of the property as just quoted was so vague and indefinite -as to render it incapable of identification; and to "this ruling the defendants excepted. The court did not err in excluding this evidence. Where [129] the return of appraisers setting aside a year’s support does -not purport to set aside the entire estate of the decedent, hut sets aside designated items of property, such items must be so described as to be capable of identification by the aid of extrinsic evidence; and unless this is done, the return is void and incapable of enforcement. McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655); Beavers v. Wilson, 144 Ga. 231 (86 S. E. 1089). It is not necessary that the return itself should contain such a description as will enable the court, without the aid of extrinsic evidence, to ascertain precisely what is set aside. Andrews v. Murphy, 12 Ga. 431. The description is not too vague if the court can, by the aid of parol evidence which does not add to, enlarge, or in any way change the description, fit it to the property set aside or* conveyed. Callaway v. Beauchamp, 147 Ga. 17 (92 S. E. 538). If the return furnish the key to the identification of the land set apart, that is sufficient. Price v. Gross, 148 Ga. 137 (96 S. E. 4). But parol evidence is inadmissible to supply a description which is entirely wanting in the writing. Douglass v. Bunn, 110 Ga. 159 (35 S. E. 339). So a description as follows: “424 acres of land in Tattnall County,” was held by this court to be too vague and indefinite. Tippins v. Phillips, 123 Ga. 415 (51 S. E. 410). The description, “one vacant lot, containing one acre, in the Town of Lincolnton,” is not more certain than the description, “424 acres of land in Tattnall County.” The latter is too uncertain because applicable to any 424 acres of land in Tattnall County. The former is too uncertain because applicable to any vacant lot in the Town of Lincolnton containing one acre. If the proof showed that the deceased owned only one vacant lot, containing one acre, in the Town of Lincolnton, the description might be good. Lick v. O’Donnell, 3 Cal. 59 (58 Am. D. 383); Lane v. Head, 148 Ga. 650 (97 S. E. 852); King v. Sears, 91 Ga. 577 (18 S. E. 830). But where there is more than one lot of land answering the description, belonging to the grantor or the person from whose estate the year’s support is taken, the deed or the return would be void for uncertainty, the grantee or beneficiaries having no election as to which piece he or they will take. Lumbard v. Aldrich, 8 N. H. 31 (28 Am. D. 381). The contention of counsel for the defendants that the evidence shows that the deceased owned only one [130] vacant lot, containing one acre, in the Town of Lincolnton, is not borne out by' the evidence in the record. (The rulings in Shore v. Miller, 80 Ga. 93 (4 S. E. 561, 12 Am. St. R. 239), Ainslie v. Eason, 107 Ga. 747 (33 S. E. 711), Brice v. Sheffield, 118 Ga. 128 (44 S. E. 843), Crawford v. Verner, 122 Ga. 814 (50 S. E. 958), and Hancock v. King, 133 Ga. 734 (66 S. E. 949), are not in conflict with what is ruled above. In Hancock v. King the description in the return of the year’s support was “ 450 acres of land, including homestead.” This court construed “homestead” to mean the home of the deceased, and held that, by the aid of extrinsic proof, it could be shown what lands constituted his home. As the judge properly excluded the record, which attempted to set aside a year’s support to the widow and minor children of Thomas H. Eemsen Sr., he did not err in ruling out the evidence of two of the commissioners to the effect that the vacant lot mentioned in their return embraced the premises in dispute. This evidence thus became irrelevant. The court excluded from evidence, when offered by the defendants, a deed from Harry F. Eemsen, to T. H. Eemsen Jr., dated June 13,-1908, which conveyed for a consideration of $650 his half interest in the Eemsen residence, and all the interest he had or might have in the lots set aside to the widow of Thomas H. Eemsen Sr., and her minor children. In the' absence of proof that a year’s support embracing the lot in dispute had been set aside to this widow and these minor children, this deed was immaterial and was properly rejected by the court. The defendants complain of the instructions of the court to the jury set out in the 5th and 6th grounds of the amendment to their motion for new trial. These instructions are given in full in the-statement of facts. The instruction in the 5th ground embraces the principle enunciated in the Civil Code (1910), § 4122. This section deals with the apportionment of price when there is a deficiency in. the number of acres in a sale of lands. The instruction set out in the 6th ground undertakes to apply this principle of the above section of the Code to the rights of the defendants in this case. The court erred in giving these instructions to the jury, because they were not applicable to the issue involved, the true issue being whether the deed under which the defendants [131] prescribe embraces the premises in dispute, and not whether there is any deficiency in the number of acres which' the grantor in the deed sold to the grantee. When land is conveyed by metes and bounds,'whether there be more or less than the quantity named in the deed, the purchaser obtains the whole of it. Benton v. Horsley, 71 Ga. 619; Ray v. Pease, 95 Ga. 153, 170 (22 S. E. 190); Baker v. Corbin, 148 Ga. 267, 269 (96 S. E. 428). The general rule is that where instructions are given which are not warranted by the evidence and which are calculated to mislead and confuse the jury, the error requires the grant of a new trial. Central Ga. P. Co. v. Cornwell, 139 Ga. 1 (76 S. E. 387, Ann. Cas. 1914A, 880); Mitchell v. Langley, 148 Ga. 244 (96 S. E. 430). These instructions fall within this general rule, and require the grant of a new trial. Judgment reversed. All the Justices concur.