Opinion
16917.
JANUARY 11, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Complaint for land. Before Judge Thomas. Coffee Superior Court. October 10, 1949.
Grantham Smith and W. C. Lankford, for plaintiff.
Sapp Ewing, for defendants.
1. Estoppel conveys no title to land.
2. "A deed is sufficient to pass title, and will not be declared void for uncertainty of description, if the descriptive averments are certain, or if they afford a key by which the land can be definitely located by the aid of extrinsic evidence." Deaton v. Swanson, 196 Ga. 833 ( 28 S.E.2d 126).
No. 16917. JANUARY 11, 1950. REHEARING DENIED FEBRUARY 17, 1950.
Mrs. Mattie L. Lankford filed a petition against Lonnie A. Pope and Mrs. Gertrude Pope, to recover a tract of land located in the City of Douglas, Coffee County, Georgia. After describing the land, it is alleged: It is "the identical lands conveyed by deed by B. Peterson to Ava Rilla Sapp, dated January 23, 1901," and recorded in the clerk's office of Coffee County, Georgia. At the time of the execution of the deed from Peterson to Sapp, Peterson was the owner of the legal title to the lands described, and the deed conveyed title to Ava Rilla Sapp. The petitioner is now the owner in fee simple of the lands described, and as such is entitled to entry, possession, and mesne profits. The petitioner claims title as successor in title under the deed from Peterson to Sapp, and the defendants claim whatever title they are asserting to the lands under B. Peterson. The defendants refuse to let the petitioner enter into possession, or exercise acts of ownership over the land. For want of information the petitioner is unable to allege whether both defendants claim the land jointly, or whether Mrs. Pope claims it individually, or whether Lonnie A. Pope claims the land individually. Lonnie A. Pope is, however, acting as agent of Mrs. Pope, and if either of them does not claim title, a disclaimer should be filed by such defendant. The petitioner prayed for process, that title to the land be decreed in her, and that she recover mesne profits.
By amendment it was alleged: On April 4, 1894, a warranty deed was executed from the Waycross Lumber Company to Benajah Peterson, conveying all of lot No. 193 in the 6th Land District of Coffee County, Georgia, containing 490 acres, except a tract for right-of-way and depot purposes for a railroad. On January 23, 1901, B. Peterson executed a warranty deed to Ava Rilla Sapp, which conveyed: "All that certain tract of land situated, lying, and being in, the Sixth District of Coffee County, Georgia, and described as follows: Being in the town of Douglas, and bounded on the north by lands of B. Peterson, west by Walnut Street, south and east by lands of B. Peterson, being part of lot of land No. 193. Said piece of land designated by stakes, containing one-half (1/2) acre." On December 16, 1901, Ava Rilla Sapp conveyed the land to E. R. Smith, the description being the same as above set forth. On July 17, 1902, E. R. Smith conveyed the land to John Streeter, the description in the deed being the same as in the deed from Peterson to Sapp. Subsequent deeds in the chain of title, down to the petitioner, adequately describe the land, except a deed from D. W. Gaskin to J. D. Cheves, which accurately described the land, but in recording it the clerk of the superior court left out part of the description. The petitioner has quit claim deeds from the heirs at law of D. W. Gaskin. The defendants claim title to the lands as successors in title of B. Peterson, who died testate. His wife conveyed her interest in the land to an only son, and this son died intestate, leaving as his sole heir the defendant, Mrs. Gertrude Pope. The defendants are estopped to deny the petitioner's claim of title, based on a conversation between W. C. Lankford, husband of the petitioner, and B. Peterson; the common grantor, prior to the time the lands were acquired by W. C. Lankford and during the lifetime of the common grantor.
The trial court sustained a general demurrer to the petition, and the exception is to that judgment.
1. The estoppel asserted by allegations of the petition, based on a conversation between W. C. Lankford and the common grantor, B. Peterson, is without merit. If, at the time of the conversation, Peterson had parted with title to the lands to Ava Rilla Sapp, his declarations or statements would not enlarge the title conveyed. On the other hand, if the deed was void for uncertainty, and if B. Peterson was still the owner of the land, the statements of Peterson would be insufficient to convey title. Rogers v. Manning, 203 Ga. 771 ( 48 S.E.2d 527).
2. There is but one question for determination in the present case. If the deed from B. Peterson to Ava Rilla Sapp, alleged to have been executed on January 23, 1901, and duly recorded, contained a sufficient description, the petition stated a cause of action.
In order to convey title to land in this State, the description of the land sought to be conveyed by deed must be sufficiently certain to afford means of identification. Andrews v. Murphy, 12 Ga. 431; Huntress v. Portwood, 116 Ga. 356 ( 42 S.E. 513); Luttrell v. Whitehead, 121 Ga. 699 ( 49 S.E. 691); Crawford v. Verner, 122 Ga. 814 ( 50 S.E. 958); Allen v. Smith, 169 Ga. 395 ( 150 S.E. 584). In Allen v. Smith, supra, it was said: "A deed lacking in such certainty of description, standing alone, is inoperative either as a conveyance of title or as color of title."
If the premises, however, are so referred to as to indicate the intention of the grantor to convey a particular tract of land, extrinsic evidence is admissible to show the precise location and boundaries of such tract. The test as to the sufficiency of the description in a deed is whether or not it discloses with sufficient certainty the intention of the grantor with respect to the quantity and location of the land therein described. Andrews v. Murphy, supra; Crawford v. Verner, supra; Patrick v. Sheppard, 182 Ga. 788, 791 ( 187 S.E. 379); Gould v. Gould, 194 Ga. 132, 135 ( 21 S.E.2d 64); Mull v. Allen, 202 Ga. 176, 179 ( 42 S.E.2d 360); Haygood v. Duncan, 204 Ga. 540 ( 50 S.E.2d 214).
In the present case, counsel for the defendant contend that the deed from Peterson to Sapp does not sufficiently afford a means of identification of the lands sought to be conveyed. This contention must be determined on the last clause of the description. "said piece of land designated by stakes, containing 1/2 acre." The description states that the land is located in land lot 193, in the 6th Land District of Coffee County, Georgia, in the City of Douglas, and is bounded on the west side by Walnut Street. It is asserted that there may have been a large number of lots in the lands of B. Peterson marked by stakes, lying on the west side of Walnut Street, in lot 193, in the City of Douglas, and that the description is therefore insufficient.
The description under consideration deals with one lot, "designated by stakes." To designate is to "mark out and make known; to point out; to name; indicate; show; to distinguish by marks or description; to specify; as, to designate the boundaries of a country." Webster's New International Dictionary (2d ed.), p. 708. "Designated by stakes" means that the land had been marked out by stakes at the time of the execution of the deed from Peterson to Sapp. If, as between the parties, the land was so marked out and made known by stakes that each of the parties knew exactly the land sought to be conveyed, the deed was not void for uncertainty of description. That which was at one time made known, as between the parties, by the use of stakes, is a proper subject-matter for extrinsic evidence.
Traditionary evidence as to ancient boundaries and landmarks is admissible, its weight to be determined in all instances by the jury according to the source from which it comes. Code, § 38-313. It has been held that, from actual necessity of the case, boundaries may be proved by hearsay. Riley v. Griffin, 16 Ga. 141 (60 Am. D. 726).
The key to the land conveyed in the deed from B. Peterson to Ava Rilla Sapp is a city lot "designated by stakes." Extrinsic evidence may supply the location and shape of this particular tract of land. It was therefore error to sustain the general demurrer and dismiss the petition.
Judgment reversed. All the Justices concur, except Atkinson, P. J., and Wyatt, J., who dissent.