In an ejectment suit, brought by Babcock Brothers Lumber Company against Calhoun, the plaintiff's right to recover depended solely upon the true location of an east original land line which formed the dividing line between the lands of the parties, and the petition definitely described such line by reference to iron stakes and by alleging further that a part of it had been "formerly marked by a fence" which the defendant had removed, no other east original line being mentioned in the petition, and no line being mentioned in the answer. The jury trying the case returned the following verdict: "We, the jury, recommend that the fence be took up and set back on the original line agreed upon by Babcock and Bush, and also recommend that no rent be paid Babcock Company, but that Calhoun have the privilege to remove his fence and posts off of Babcock land." which verdict the defendant attacked by a suit in equity upon the ground that it was void for uncertainty. Held, that the verdict was not void upon its face, and that the allegations in the equity suit did not show that it was void as contended; "the original line agreed upon by Babcock and Bush," as mentioned in the verdict, being construed to mean the east original line described in the petition in the land suit, nothing to the contrary appearing.
(a) The equitable petition did not state a cause of action, and was properly dismissed on general demurrer.
No. 15083. MARCH 7, 1945. Stated briefly, the present suit is one in equity to avoid the verdict and judgment in a previous ejectment case between the same parties, on the alleged ground that the verdict was void for uncertainty and for failure to cover the issues. So far as here material, the facts touching the former litigation, as revealed by the instant petition, were as follows:
Babcock Brothers Lumber Company sued J. R. Calhoun in fictitious form to recover a strip of land off the east side of lots of and Nos. 375, 376, and 377 in the 12th district of Miller County, more particularly described as follows: "Beginning at the north-east *Page 172 original corner of said lot of land No. 375, and running south 1 degree 30 minutes east along the east original lot lines of said lots of land No. 375 and 376 and 377, a distance of 150 chains, more or less, to the southeast original lot corner of said lot of land No. 377, thence cornering and running west along the south original lot line of said lot of land No. 377, a distance of 4.73 chains, thence cornering and running due north and without compass variation across said lots of land Nos. 377, 376, and 375, to the north original lot line of said lot of land No. 375, thence cornering and running 0.57 chains to point of beginning; said tract of land containing in the aggregate 39.75 acres, more or less."
By amendment, it was alleged that "the east line of the property sued for is a straight line running from an iron stake which is located at the southeast corner of lot of land No. 377 in the 12th land district of Miller County, Georgia, to another iron stake located at the northeast corner of said lot No. 377, and then running and extending on in the same direction to the north lot line of land No. 375 in the 12th land district of said county; which said on lot No. 375 was formerly marked by a fence, which said fence was removed by the defendant, J. R. Calhoun, or his employees before the filing of this suit."
The defendant answered, not guilty; and this answer and the complaint as amended constituted the only pleadings before the verdict. The jury returned the following verdict: "We, the jury, recommend that the fence be took up and set back on the original line agreed upon by Babcock and Bush, and also recommend that no rent be paid Babcock Company, but that Calhoun have the privilege to move his fence and posts off of Babcock land." Thereupon, the following decree was entered: "The above stated case coming on regularly to be heard at the October term, 1942, of Miller County superior court, and the jury in said case having returned the following verdict [quoting verdict as above]; and the evidence disclosing that the east line of the tract of land sued for in this case is the line which was agreed upon by the plaintiff, Babcock Brothers Lumber Company, and C. C. Bush, predecessor in title of the defendant, Richard Calhoun. It is, therefore, considered, ordered, and adjudged, that the plaintiff, Babcock Brothers Lumber Company, do have and recover of the *Page 173 defendant, J. R. Calhoun, the land sued for, and it is further ordered and adjudged that the defendant, J. R. Calhoun, have the privilege and right of moving all fencing and posts belonging to said J. R. Calhoun, which are located on the land sued for, and it is further ordered that the plaintiff do have and recover of the defendant $ ____ costs of this proceeding." The verdict and judgment were rendered at the October term, 1942, of Miller superior court. The facts stated above all appear from the present petition and exhibits attached thereto.
Calhoun filed a motion for new trial, which, after amendment, was overruled; and this judgment was affirmed in Calhoun v.Babcock Brothers Lumber Co., 198 Ga. 74 (30 S.E.2d 872), in which it was held, among other things, that "no attack having been made as to the sufficiency or certainty of the verdict, except in the brief of counsel, and no question having been raised in the court below that the judgment did not follow the verdict, these questions are not before us for consideration;" which ruling was repeated and amplified on motion for rehearing as follows: "Since there was testimony which did non fact support the finding as made, and since no fault was found with it when taken in connection with the pleadings, . . and since the decree . . follows the findings of the jury taken in connection with the pleadings, we do not think that the verdict can be set aside on the general grounds of the motion for new trial, even though, in order to enter a valid decree, it might have been required to construe the findings, as it was the duty of the court to do, in connection with the petition."
On July 20, 1944, after the decision by this court, J. R. Calhoun filed the present suit in equity against Babcock Brothers Lumber Company, the former plaintiff, and against W. W. Bird, as clerk of the superior court of Miller County, attacking the verdict in the ejectment case as being void for uncertainty, and as failing to cover the issues made by the pleadings and the evidence.
The petition alleged that the pleadings in the ejectment case do not show "the Babcock and Bush agreed line referred to in the verdict in said case to be the east line of the tract sued for;" and that "the evidence in said case totally fails to identify any of the lines, shown by the evidence in said case, to be the Babcock and Bush agreed line referred to in the verdict of the jury in said *Page 174 case; and the evidence in said case does not furnish any key whereby any of the lines shown by the evidence in said case could be identified as such — that is, the Babcock and Bush agreed line referred to in the verdict of the jury in said case; and it is impossible to determine what land the verdict of the jury intended to find that the plaintiff should recover in said case."
The petition also attacked the judgment on the grounds: (1) it did not follow the verdict; (2) the verdict being void, the court had no jurisdiction or authority to enter any judgment thereon; (3) the judgment itself was void for indefiniteness; and (4) the following clauses were inserted therein by the judge through mistake of law and fact and without any authority or jurisdiction so to do, namely: (a) "And the evidence discloses that the east line of the tract of land sued for in this case was the line which was agreed upon by the plaintiff, Babcock Brothers Lumber Company, and C. C. Bush, predecessor in title of the defendant, Richard Calhoun." (b) "It is, therefore, considered, ordered and adjudged, that the plaintiff, Babcock Brothers Lumber Company, do have and recover of the defendant, J. R. Calhoun, the lands sued for." It was also alleged and contended that the judgment should be amended by striking both of these clauses.
It further appeared from the petition that the plaintiff Calhoun is the owner of lots 352, 353, and 354 in the 12th district of Miller County, lying east of and adjacent to lots numbers 375, 376, and 377; and that, although the former suit was an action to recover a described tract of land, it involved only a dispute as to the true location of the original line between the lots owned respectively by the plaintiff and the defendant.
The petition in the equity suit contained the following prayers: that the verdict and judgment in the ejectment case be both set aside and declared null and void; that the judgment be amended by striking the clauses which it was alleged the judge had no authority or jurisdiction to insert therein; that Babcock Brothers Lumber Company, its agents and employees, be enjoined from having any writ of possession issued in the ejectment case; that W. W. Bird, as clerk of the superior court, be enjoined from issuing a writ of possession; and for process and general relief. The court sustained general and special demurrers filed by the defendant lumber company, and dismissed the petition. Calhoun excepted. *Page 175 One of several contentions presented by the demurrer was, that the petitioner was not entitled to any of the equitable relief sought, for the reason that he could have obtained complete and adequate relief as to all matters of which he complained by appropriate proceedings in the ejectment case. In the view we take of the case, we need not pass upon this contention.
The demurrer also presented the contention that the verdict did not appear to be void. Since this contention went directly to the merits of the controversy, and since we are of the opinion that it was well taken, we deem it not improper, under the facts of the case, to place our decision upon that ground, thus putting at rest the substantive matter in dispute, and rendering it unnecessary to deal with other questions. Compare Hopkins v.Kidd, 192 Ga. 791, 795 (16 S.E.2d 570). The question to be determined, then, is whether the instant petition showed that the verdict was void for uncertainty, the petition as a whole having been predicated solely upon that theory.
Although the former suit was an action in ejectment, the plaintiff's right to recover depended solely upon the true location of the cast original land line which formed the dividing line between the lots of the plaintiff on one side and those of the defendant on the other. Only one such original line was mentioned in that suit, and it was described therein, not only by reference to three designated lots of which it was alleged to be the eastern boundary, but also by definite reference to iron stakes, and by alleging further that a part of it had been "formerly marked by a fence, which said fence was removed by the defendant, J. R. Calhoun, or his employees before the filing of this suit."
The defendant's answer consisted only of a plea of not guilty, and did not refer to any particular lot or lot line.
The verdict was as follows: "We, the jury, recommend that the fence be took up and set back on the original line agreed upon by Babcock and Bush, and also recommend that no rent be paid Babcock Company, but that Calhoun have the privilege to move his fence and posts off of Babcock land." The petitioner, who was *Page 176 the defendant in the ejectment case, contends that this verdict is void for uncertainty, and for failure to cover the issues made by the pleadings and the evidence, because it can not be determined from the verdict and the pleadings what was "the original line agreed upon by Babcock and Bush." Manifestly, the jury intended to find something in favor of Babcock Brothers Lumber Company, otherwise they would not have recommended that no rent be paid Babcock Company, or that Calhoun have the privilege of moving "his fence and posts off of Babcock land."
Verdicts shall have a reasonable intendment, shall receive a reasonable construction, and shall not be avoided except from necessity. Code, § 110-105. The presumptions are in favor of the verdict, and the burden is on the party attacking it to show its invalidity. Mobley v. Belcher, 144 Ga. 442 (87 S.E. 470);Camp Lumber Co., v. Strickland, 144 Ga. 445 (87 S.E. 413). Where a verdict is ambiguous and susceptible of two constructions, one of which would uphold it, and one of which would defeat it, it "will not on this account be set aside, but will be given a construction which will uphold it." Atlantic Birmingham Ry. Co., v. Brown, 129 Ga. 622 (4) (59 S.E. 278).
If the verdict had found only that the fence be taken up and set back on the line agreed upon by Babcock and Bush, it might perhaps have been too indefinite, but it said, "the original line," and as we have just stated, the suit definitely described the east original line for which the plaintiff contended. If the words, "agreed upon by Babcock and Bush," had been omitted, then the phrase, "the original line," when construed with its context, would presumably refer to the original line as described in the suit, and there would be no uncertainty. Code, § 110-101 ;Barnes v. Strohecker, 17 Ga. 340 (3); Johnson v. Jones,68 Ga. 825; Brand v. Kennedy, 71 Ga. 707 (3); Hardy v.Rylee, 182 Ga. 618, 619 (186 S.E. 727). In other words, the verdict, minus the words, "agreed upon by Babcock and Bush," would clearly have found for the plaintiff the entire tract in dispute, since only the dividing line was to be determined. Nor does the phrase that was interpolated necessarily negative such a finding, for if Babcock and Bush did agree upon an original line, its course and location could have been determined in precise accord with its course and location as described in the *Page 177 petition in the land suit, and for aught that appears, either in the pleadings in that case or in the present petition, there was such accord. It is true, as alleged in the instant case, the petition in the land case did not show "the Babcock and Bush agreed line" to be the east line of the tract sued for. However, this does not alter the fact that the parties thus named could have agreed, and may actually have agreed, upon such location. Nor does the present petition show affirmatively that a different agreement was made, and in this statement we refer both to the direct allegations and to the alleged copy of the evidence adduced in the land case, which was attached as an exhibit to the instant petition.
We thus reach the conclusion that the phrase, "agreed upon by Babcock and Bush," did not necessarily refer to an original line different from the one and only original line described in the petition in the land case, and, since nothing to the contrary appears, it should be construed consistently therewith. Accordingly, under the facts shown, the verdict can be taken to mean only that the original line so agreed upon is the same as the original line described in the land suit, and that the plaintiff should recover the tract in dispute. In this view, since the added words were insufficient to change the result, they may be treated as surplusage, and disregarded.
In Patterson v. Fountain, 188 Ga. 473 (4 S.E.2d 38), the following verdict was sustained as against an attack that it was void for uncertainty: "We, the jury, find in favor of the defendant, establishing the line that was originally agreed upon by both contending parties in the year 1916, peaceably standing until 1933." It was held that the verdict was a finding in favor of the defendant for the premises in dispute, the part relating to the establishment of a line being treated as surplusage. As to surplusage, see generally, Fraser v. Jarrett, 153 Ga. 441 (7) (112 S.E. 487); Nichols v. Kilpatrick, 157 Ga. 884 (2) (122 S.E. 611) ; Short v. Cofer, 161 Ga. 587 (131 S.E. 362); Roberts v. Roberts, 166 Ga. 847 (2) (144 S.E. 654);Southern Railway Co., v. Oliver, 1 Ga. App. 734 (4) (5) (58 S.E. 244); Geer v. Thompson, 4 Ga. App. 756 (3) (62 S.E. 500); Monk-Sloan Supply Co., v. Quitman Oil Co., 10 Ga. App. 390 (2) (73 S.E. 522); Lawson v. State, *Page 178 52 Ga. App. 181 (182 S.E. 820). The petition did not state a cause of action, and was properly dismissed on general demurrer.
In the view which we have taken, it is unnecessary to determine whether, if the verdict had been apparently subject to the objections made, the judge could have cured the defect by inserting in the judgment the clauses which the petitioner sought to have stricken. Since the verdict was apparently valid, and the judgment was in conformity with its legal effect, the recital in the judgment as to what was shown by the evidence does not harm the petitioner.
Judgment affirmed. All the Justices concur.