Grow v. Solomon

100 S.E. 651, 24 Ga. App. 259, 1919 Ga. App. LEXIS 535

Opinion

Broyles, O. J.

The original deed, or timber lease, which was the basis of an action for breach of warranty af title to standing timber, contained the following description of the timber: “all of the timber of every description except (oak and hickory) now, standing or growing in or on the swamp and flat creek lands of Spring Creek, where the same runs through 169 acres off of the south side of lots of land 149 one forty-nine, and one seventy-one (171) in the thirteenth district (13th) of Miller County, Georgia, except such timber as may be on thirty-one (31) acres of lots of land in the southeastern corner of said lot number 149, belonging to Mrs. Eliza Stanton, . . Also excepting that portion of lot 171 included under fence J. S. Bush.” Held: This description is too indefinite and uncertain, even when aided by the extrinsic documentary evidence attached to ■ the petition, to afford any means of identifying the exact body of timber which the maker of the deed intended to convey. The deed, therefore, did not pass title to any of the timbei:, and the suit should have been dismissed on the general demurrer interposed. See, in this connection, Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513); Crawford v. Verner, 122 Ga. 814 (50 S. E. 958) ; McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655); Youmans v. Moore, 144 Ga. 375 (87 S. E. 273).

Decided October 10, 1919.

Action for damages'; from Miller superior court—Judge Worrill. March 27, 1919.

P. D. Rich, W. I. Geer, for plaintiff in error. N. L. Stapleton, contra.

Judgment reversed.

Luke and Bloodworth, JJ., concur.