Reeves v. Whittle

153 S.E. 53, 170 Ga. 408, 72 A.L.R. 405, 1930 Ga. LEXIS 467
CourtSupreme Court of Georgia
DecidedApril 17, 1930
DocketNo. 7421
StatusPublished
Cited by16 cases

This text of 153 S.E. 53 (Reeves v. Whittle) 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
Reeves v. Whittle, 153 S.E. 53, 170 Ga. 408, 72 A.L.R. 405, 1930 Ga. LEXIS 467 (Ga. 1930).

Opinion

Hines, J.

T. J. Beeves filed Ms petition in the superior court of Epson County against J. C. Whittle, W. A. Whittle, Jesse Elliott, Mrs. Leila Bush, and Mrs. E. T. Nottingham, to enjoin J. C. Whittle and Jesse Elliott from cutting and removing the timber from a tract of land owned by Mm and described as “all that tract or parcel of land, being parts of land lots No. 194 and No. 195 in the sixteenth land district of Epson County, Georgia, and known as the Spivey place, and bounded as follows: on the north and east by lands of the Davis Dawson estate, on the south by lands of the estate of Mrs. A. M. Zorn, and on the west by lands of the Flint Biver Manufacturing Company and the waters of Tobler Creek; . . the same containing three hundred acres, more or less, as evidenced by a deed from Mrs. Nannie A. Alford to” petitioner, “dated October 24, 1917, . . and recorded on October 25” of that year, which describes the land conveyed as above, and ■recites that the land conveyed by it was sold by the tract and not by the acre. In this suit petitioner seeks to have the southern boundary of the above-described tract of land, being the boundary between his tract and lands owned by Mrs. Nottingham, Mrs. Bush, and W. A. Whittle, set up and established. He further alleges that the dividing line between his tract of land and the lands claimed by said above-named defendants, which lie south of his tract, begins “at a rock corner on the public road from Hottenville [410]*410to Thomaston, between the J. C. Zorn Jr. residence and Old Harmony GrOve Cemetery, and” runs “from said rock corner west by the Old Harmony Spring to Tobler Creek.” He attaches to his petition an abstract of his title to the land involved in this litigation. The first link in this abstract is a deed from Mrs. A. M. Zorn to E. T. Nottingham, dated September 30, 1904, which conveys parts of lots 194, 195, 200, 201, 202, 217, 218, and 219 in the 16th district of said county, containing 950 acres, more or less, and bounded on the east by the public road leading from Hootenville to Thomaston, on the north by the land of E. A. Flewellen, known as the Spivey place, and lands of E. T- Nottingham, on the west by Tobler Creek and the land of E. T. Nottingham, and on the south by a line beginning at a rock corner on the above-named public road between the residence of J. O. Zorn Sr. and the Old Harmony Cemetery, and running from said rock corner west by the Old Harmony Spring to Tobler Creek, said line dividing other lands of Mrs. Zorn from the land therein conveyed. The second link in said abstract o£ title is a deed from Allen, trustee in bankruptcy of E. T. Nottingham, to E. A. Flewellen, dated December 20, 1901, which conveys the following described lands: “parts of lots 194, 195 in the 16th district .of Hpson County, Georgia, known as the Spivey place, and bounded as follows: on the west by lands of Flint River Mfg. Co. and Tobler Creek, on the north and east by Davis Dawson estate, and on the south by lands of Mrs. A. M. Zorn. This land sold by the tract, and not by the acre.” This deed conveys other property besides the above. The third link in said abstract is a deed from the executors of the estate of E. A. Flewellen to T. M. Matthews and Charles F. Stephens, dated December 6, 19.13, conveying “parts of lots 194 and 195 in the 16th district of Hpson County, Georgia, and known as the Spivey place, and bounded” on the “north and east by the Davis Dawson estate, south by lands of Mrs. A. M. Zorn, west by lands of Flint'River Mfg.“Co. and the' waters of Tobler Creek. The fourth' link in petitioner’s chain of title is a deed from Matthews and Stephens to Nannie A. Alford, dated August 16, 1916, which conveys the same land with the same boundaries as that described in the last link of said abstract. This deed recites that it conveys a part of the land conveyed as above by the trustee in bankruptcy of Nottingham to Flewellen, and further recites that the land therein is described in the aboye deed from [411]*411the executors of Flewellen to Matthews and Stephens. The fifth link in said abstract is the deed from Mrs. Nannie A. Alford to petitioner, the terms ol: which are set out above.

On a former trial of this case a verdict was returned in favor of the plaintiff. A motion for neiv trial was made by the defendants, which was overruled by the trial judge; and to this judgment they excepted. This court reversed that judgment, for the reason that the testimony was insufficient to identify or locate the land line in controversy, as described in the petition. Whittle v. Reeves, 166 Ga. 248 (142 S. E. 869). On the second trial the plaintiff amended his petition by alleging that said southern boundary line “begins at a point on Highway No. 3, 570 feet south of the Walker Grave lot in Harmony Grove Cemetery, and” runs “in a westerly direction by Harmony Spring in a straight line to Tobler Creek;” that this line begins at the southwest corner of the Spivey place, where it crosses a certain hedgerow on the west side of said place about 150 yards west of the old William Prater house, of which only an old standing chimney now remains, there being a certain post-oak tree standing on said hedgerow where said line crosses the same, this tree marking the southwest corner of the Spivey place; and that said line is the same line described in paragraph 2 of his original petition. Plaintiff offered a further amendment in which he “alleges that the southern boundary of the lands conveyed to him by Mrs. . . Alford, known as the Spivey place, extends down into lots 200 and 201.” On objection of counsel for the defendants the court disallowed said amendment, for the reason that the description of plaintiff’s land in his petition and in tbe copy of his deed attached thereto is at variance with said amendment. To the disallowance of this amendment the plaintiff excepts in the present writ of error. The case proceeded to trial under the pleadings hereinbefore set forth, and under a stipulation in writing between the parties that “Without the introduction of testimony it is agreed and admitted by the parties that in order for the plaintiff to recover it is necessary to show that what is commonly known as the Spivey place extends down into a portion of land lots 200 and 201, and that the line described in the original petition and amendments' and the amendment disallowed thereto as the southern boundary line of the Spivey place lies in land lots 200 and 201.” Thereupon defendants moved the court to dismiss or nonsuit the case, for the [412]*412reason that the petition and the amendments thereto and the deed under -which the plaintiff claims title to the Spivey place show that no part of the Spivey place is included in lots other than lots 194 and 195; and-that for this reason plaintiff can not go outside of those lots to establish the southern boundary of the Spivey place as contended for by him. The court sustained said motion, and the plaintiff excepted upon the ground that this judgment was contrary to law.

Does the deed from Mrs. Nannie A. Alford to petitioner embrace any parts of land lots Nos. 200 and 201 in the 16th district of said county ? It is insisted by counsel for the defendants that this deed contains two descriptions of the land conveyed, one general and the other particular, and that its construction falls within the rule that if there are such two descriptions, and if there is any repugnance between the two, the particular description will prevail over the general description. Shackelford v. Orris, 129 Ga. 791 (59 S. E. 772); Osteen v. Wynn, 131 Ga. 209 (62 S. E. 37, 127 Am. St. R. 212). The language, “parts of land lots No. 194 and No.

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Bluebook (online)
153 S.E. 53, 170 Ga. 408, 72 A.L.R. 405, 1930 Ga. LEXIS 467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reeves-v-whittle-ga-1930.