Petretes v. Atlanta Loan & Trust Co.

131 S.E. 510, 161 Ga. 468, 1926 Ga. LEXIS 286
CourtSupreme Court of Georgia
DecidedJanuary 13, 1926
DocketNo. 4723
StatusPublished
Cited by15 cases

This text of 131 S.E. 510 (Petretes v. Atlanta Loan & Trust Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petretes v. Atlanta Loan & Trust Co., 131 S.E. 510, 161 Ga. 468, 1926 Ga. LEXIS 286 (Ga. 1926).

Opinion

Russell, C. J.

(After stating the foregoing facts.)

The action is a joint one against the Atlanta Loan & Trust Company and W. C. Redding. The defendants demurred separately. The bank in its demurrer set up that Redding was not its agent; that it was not bound by any contract that may have been entered into by him. Redding alleged that he could not be sued individually, because he was the alleged agent of the bank. To this extent the claims of the defendants were conflicting. Both, however, joined in the contention that the description of the land in question was insufficient to effect any conveyance of the land, and insufficient to comply with the statute of frauds. Therefore we shall first determine whether the description as contained in the statement of facts is sufficient to so describe the land as that it is capable of identification and conveyance. It is well settled that an insufficient description is void to effect a transfer of any interest in real estate. It seems to be equally well settled that parol evidence, though incompetent and inadmissible to add to, vary, or alter the terms of a written contract, Inay be used -to make certain that which is uncertain, if it be perfectly plain from the description in a contract of sale of land what property the grantor intends to convey. It is true, as argued by the defendants in error, that the description of the land, as contained in the' contract in this case, might include only one foot square of land at the northeast corner of Bell Street and Auburn Avenue; and yet we are of the opinion that the contract bespeaks an intention to sell all of the lot owned by the Atlanta Loan & Trust Company at the northeast corner of Bell Street and Auburn Avenue (thus fronting on' both these streets) for whatever length this lot of the Atlanta Loan & Trust Company may extend along both these streets, and that extrinsic evidence is competent and admissible for the purpose of determining the exact boundaries of' the lot. We think the case is controlled by the ruling in King v. Brice, 145 Ga. 65 (88 S. E. 960). We are of the opinion that when the statement is made that the lot is at the northeast corner of the streets that have been named and that the property is owned by the Atlanta Loan & Trust Company, and there is nothing to sug[471]*471gest that there is any other property at the northeast corner of the designated streets, it must be admitted that a lot, and all of that lot, at that corner belongs to the Atlanta Loan & Trust Company, and that therefore there would be nothing necessary to identify the transaction except to ascertain from other evidence the dimensions of the lot at the corner of Auburn Avenue and Bell Street which is owned by the Atlanta Loan & Trust Company. This being true, we think that the learned trial judge erred in dismissing the petition as to both of the defendants.

That certain tract or parcel of land belonging to the Atlanta Loan & Trust Company, located on the northeast corner of Auburn Avenue and Bell Street in the City of Atlanta, Fulton County, Georgia, certainly excludes any idea that the Atlanta Loan & Trust Company owned more than one lot contemplated to be sold; because in the nature of things there can only be one lot on the northeast corner of Auburn Avenue and Bell Street that could be the property of any one. There can be but one northeast corner of any city block in any city. The language used can only be held to imply that the Atlanta Loan & Trust Company owns the lot on the northeast corner, and that it is selling the whole of that lot; for there is no reference to any undivided interest nor any reference to any interest that is indefinite, the language being, “that certain tract of land belonging to Atlanta Loan & Trust Company, located on the northeast corner of Auburn Avenue and Bell Street.” For this reason the rulings in Pickens v. Phillips, 123 Ga. 415 (51 S. E. 410), and Nettles v. Charles P. Glover Realty Co., 141 Ga. 126 (80 S. E. 630), are not in point. In the Phillips case there was no description of the land as to city or county. It was in the wide, wide world. In the Nettles case it nowhere appeared who owned the northwest corner of Boulevard and Randolph Street, nor did it appear that this was the only piece of property owned by the seller at this location. In the case at bar it appears that the Atlanta. Loan & Trust Company was the owner of only one piece of land at this location. This puts the present case without the Nettles case and places it squarely under the ruling in King v. Brice, supra, where the description of the land in a contract for its sale was held not to be so vague and indefinite as to render the contract unenforceable by an action for specific performance, when such description can be applied to the [472]*472subject-matter by the aid of extrinsic evidence supporting the further identification of the land stated in the petition. Dean v. Turner, 151 Ga. 44 (105 S. E. 602). Where a contract for the sale or exchange of real estate was dated Atlanta, Georgia, June 7, 1912, and described the property to be conveyed as “No. 401 Spring and known as the Cob home, 50 x 160 more or less,” it was held that “such description was not so vague and indefinite as to render a petition for specific performance by the purchaser subject to general demurrer.” Prima facie, the property mentioned in the contract would be treated as in Atlanta, Georgia, in the absence of anything appearing to the contrary. While the description was carelessly made, it could be applied to a subject-matter by proper allegation and proof. In Tolbert v. Short, 150 Ga. 416 (104 S. E. 245), a demurrer was filed upon the ground that the contract did not describe the land sufficiently or show on its face what county or State the land was situated in, and that there was no sufficient description of the land contained in the contract so that it could be located or designated, the only descriptive words being, “all that tract or parcel of land containing seventy-three , acres, more or less, known as the Hartly place, adjoining lands of Mrs. Lipscomb, W. L. Eagan, and others;” and the demurrer was overruled. This court sustained the decision of the lower court in overruling this demurrer. In the Tolbert case, also, exceptions were taken to the charge of the court in which the jury were instructed, “where the contract in question describes the land as a tract of land containing seventy-three acres, more or less, known as the Hartly place, adjoining lands of Mrs. Lipscomb, W. L. Eagan, and others, that those words are ambiguous and do not of themselves distinctly identify the land that was the subject of the sale, and the law allows parol evidence to be admitted to the jury for the jury to determine whether with the aid of parol evidence they may be able to ascertain what was the particular and certain tract of land that was the subject-matter of the contract.” Upon the exception to this charge we held that the evidence showed that there were two tracts of land, each containing seventy-three acres, to which the description in the contract would be equally applicable, and therefore the contract contained a latent ambiguity.

“While evidence is inadmissible to add to, take from, or vary a written contract, all the attendant circumstances may be proved; [473]*473and if there is an ambiguity, latent or patent, it may be explained. Civil Code (1910), § 4268.

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Bluebook (online)
131 S.E. 510, 161 Ga. 468, 1926 Ga. LEXIS 286, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petretes-v-atlanta-loan-trust-co-ga-1926.