Andrews v. Moss

Rtjssell, C. J. (After stating the foregoing facts.) In the lower court the plaintiffs in error sought to enjoin the sale of certain property described in the petition, upon the ground, among others, that the levies of the sheriff under which the properties were sought to be brought to sale were void for uncertainty of de [796] seription in the advertisements and levies; the contention being that each tract is described merely by reference to adjoining-land owners, and each tract being cut off from a larger piece of land of each of the plaintiffs, and, being described as adjoining on one side other lands of such owner, such description, under the ruling of this court in Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513), is void for uncertainty, and in consequence the assessment roll of the drainage tax and the fi. fas. issuing thereon were void for uncertainty of description. The issue must be controlled by the answer to the question whether the original plat upon which the assessments provided by law are based is so certain and definite that the exact tract of land assessable and assessed for drainage taxation can be ascertained and definitely located. In answer to the petition the defendants set up that the plaintiffs were estopped from setting up or claiming any defect or irregularity in the drainage proceedings which might affect or defeat the collection of the assessments against their respective lands, by reason of the fact that the plaintiffs had taken part in the establishment of the drainage district, had acquiesced in the description of their several properties as contained in the drainage rolls, had consented to the sale and issuance of bonds, and had enjoyed for several years the benefits of the drainage improvements. We shall first consider the matter of the sufficiency of the description of the various tracts of land as the same appears in the original plat of the surveyor and the assessment rolls as made and filed under the provisions of the drainage act (Acts 1911, p. 108) to withstand the objections made by the plaintiffs; this for the reason that if the original description of the land assessed and subjected to the drainage assessment is sufficient in law, the trial judge did not err in refusing to enjoin the sale of the properties levied upon, and it was not necessary for him or for this court to consider any principle resting upon the doctrine of estoppel. The writer confesses that upon his first review of the record, and since it appears in the case of each piece of property mentioned in the record that one side of the tract of land assessed was bounded by other land of the same proprietor as him to whom the tract of land assessed belonged, the ease at first blush seemed to be controlled by the doctrine announced in Huntress v. Portwood, supra, Luttrell v. Whitehead, 121 Ga. 699 (49 S. E. 691), Craw [797] ford v. Verner, 122 Ga. 814 (50 S. E. 958), Glover v. Newsome, 132 Ga. 797 (65 S. E. 64), Edwards v. Sands, 150 Ga. 11 (102 S. E. 426), and Jones v. Harris, 151 Ga. 129 (106 S. E. 555), because, as appears in the statement of facts, the dividing line between that portion of the land of the owner subjected to assessment and the remainder of the tract of such owner is not marked upon the plat by any natural or artificial landmarks, nor delineated by any figures indicating courses and distances. To merely view the map, it would naturally appear to be impossible for even a surveyor to locate, except by guesswork, the various lines delimiting the boundaries of the tracts of land assessed and subjected to drainage taxation. The question as to the sufficiency of description essential and requisite to make good a conveyance or a levy upon land in a general way may be said to be determined by whether the description given will enable a sheriff, either for himself or by means of such competent assistance as he may secure, to so definitely locate the exact land levied upon or conveyed as will enable him to correctly describe, advertise, sell, and place the purchaser in possession of no more and no less land, and of the same and not other land than that conveyed or subjected by law to levy and sale. We have referred to the question of sales of land, because the cases relied upon by the plaintiffs in error are cases of voluntary conveyances, and the case at bar is one where the land in question is sought to be subjected to sale under the provisions of the drainage act, supra. But in both instances the same principle is applicable. A voluntary conveyance is void if the description used in the conveyance leaves in such doubt the quantity and location of the land conveyed, by reason of the failure of the writing itself to furnish at least a key which with the aid of aliunde testimony may definitely establish the agreed boundaries of the tract sought to be conveyed. For the same reason, and from the fact that it is necessary for a sheriff who sells real property to put the purchaser in possession thereof, a levy may be void for uncertainty and afford good grounds for enjoining a sale of the property. In the levy in this ease, quoted in the statement of facts, the description of the land levied upon does not confine itself merely to the boundaries of adjoining-land owners, but proceeds to further identify the land levied upon by saying “as described in the assessment roll or drainage tax duplicate of Middle [798] River District, said State and County, on file in the office of the clerk of the superior court of Franklin County.” We deem the language quoted as sufficient to incorporate as part of the description in the levy the paper referred to. The plaintiff introduced in evidence the plat of the Middle River Drainage District, showing the various tracts of land upon which the assessments were placed. As stated, no courses or distances are noted upon this plat, but there was testimony before the court that by the use of the legend or “key” any competent surveyor could ascertain the area and location of each tract shown upon the plat. Mr. Conger, who testified to the original survey and field-notes of each tract of land in the Middle River Drainage District, testified that “the maps were accurately drawn to a scale, which scale is noted on the map. The map also contains thereon a legend representing different features of the map by different lines of the map and a scale; the different tracts of land within the district can be readily located by any competent engineer equipped with proper instruments. The maps were made in the customary and accepted way of making • drainage maps. The courses and distances are not written on said map, nor are they generally or customarily written on such maps. The courses and distances are 'already on the map in the legend and scale. Any competent engineer can survey a map with a scale and compass as accurately as he can survey an ordinary farm with a compass and chain such as is used in ordinary land surveying. For instance, I could easily write the. courses and distances on this map. However, I would get the courses and distances from the map itself. Writing these things on the map would not add anything that is not already there.” While there were other surveyors who testified that the area and boundaries of .the several tracts could not be determined by the map with its legend, and that extrinsic evidence would be required in an endeavor to ascertain the location of each and all of the tracts marked upon the map, the comparative credibility and weight of the testimony in this case, as in all others of a similar character, was addressed to the discretion of the trial judge; and the court preferred the testimony from which it appeared that there was no difficulty preventing the sheriff from levying upon the exact land assessed, and that there would be no difficulty after his sale in placing any purchaser in possession be [799] cause lie could not ascertain the exact boundaries of the tract he had sold. In the very able opinion of the trial judge in which he dealt with every point presented by counsel at the hearing in the lower court, in dealing with the probative value of the map as affecting the merits of the case, he said: “It is to be observed that this drainage map is not as devoid of definiteness and descriptive matter as one might suppose from a casual observation of it. It contains a legend or explanation of every line drawn upon it. This is the key that unlocks the door to many things apparently hidden. There is a scale by which the breadth and width of anything appearing on it may be definitely ascertained.” From this it is apparent that the learned trial judge accepted the testimony establishing the map with its key as the equivalent-of a plat on which every course and distance was plainly noted. If the testimony of Mr. Conger is to be credited, we see no reason why the lower court should not have reached the conclusion that the map was a key fully sufficient to enable the sheriff, with the aid of a surveyor, to locate the exact land he intended to sell and to place the purchaser upon that land, and no other than that which was lawfully subject to the drainage assessment. In view of the conclusion we have reached upon the point of the sufficiency of the descriptions of the lands as contained in the levies, consideration of other points argued in the brief is unnecessary. The trial judge did not err in refusing to enjoin the sale of tire lands in question. Judgment affirmed. All the Justices concur.