Durden v. Reynolds

Carley, Justice,

concurring in part and dissenting in part.

I fully concur in the opinion as it relates to Case No. S94A0056. However, I must dissent to the judgment in Case No. S93A1708 because I believe that the trial court did not err in refusing to grant *39partial summary judgment in favor of Durden.

Both the 50-acre tract and the 62-acre tract were conveyed to the same party in a single warranty deed in 1945. The “except” clause described

30 acres more or less situated in the Northwest corner of said tract, which tract is 800 feet more or less from the center of a branch on the south side and 1500 feet more or less from the center of said branch on the north side and being all of said tract on the northwest side of the center line of the above named branch.

This clause follows the description of both tracts and is not by its mere position in the deed a part of the description of the 62-acre tract. Thus, Reynolds’ proposed parol evidence would not change the description of the two tracts at all. It would only clarify the description contained in the “except” clause. See Richardson v. Ga. Kraft Co., 225 Ga. 743, 744 (2) (171 SE2d 312) (1969).

Where the exception furnishes a key by which the land excepted can be ascertained, and where that key indicates a tract or land lot different from that specified in the except clause, an ambiguity results. See Richardson v. Ga. Kraft Co., supra. A branch is a natural landmark and “[n]atural landmarks, being less liable to change and not capable of counterfeiting, shall be the most conclusive evidence.” OCGA § 44-4-5 (1). When the key is a branch, parol evidence is admissible as to its location. See Swint v. Swint, 147 Ga. 467 (94 SE 571) (1917); 2 Pindar & Pindar, Ga. Real Estate Law & Procedure, § 19-159 (4th ed. 1993). Parol evidence is admissible to explain any. resulting ambiguity in the “except” clause, just as it would be admissible to explain an ambiguous description of property conveyed by a deed. The authorities cited by the majority do not hold otherwise.

A construction should not be given to a deed which would defeat the grantor’s intention to except a certain quantity of land, unless the exception is so deficient in description that the land can not be located. . . . The deed contains two guides for the identification of the land embraced within the exception, namely, it is located in the north [west] corner of [a tract] and on the north[west] side of [a] [b]ranch[, the approximate location of which is specifically described as 800 feet more or less from the south side of the tract and 1500 feet more or less from the north side of the tract]. The delineation of [the] [b] ranch as a boundary line can not be ignored in the interpretation of the deed.

Sweat v. Mullis, 145 Ga. 450, 451 (89 SE 422) (1916).

*40Decided February 28, 1994 — Reconsideration denied March 18, 1994. King, Taylor & Stovall, James F. Stovall III, Gary C. Harris, for appellant. Dwight L. Thomas, Robert H. Walling, Darel C. Mitchell, for appellees.
The description of property excepted in a deed is sufficiently certain when it shows the intention of the grantor as to what property is excepted from the operation of the conveyance, and makes its identification practicable.

Hollywood Cemetery Corp. v. Hudson, 133 Ga. 271 (1) (65 SE 777) (1909). Although the exception contained in the deed involved in this case referred to the 62-acre tract rather than the 50-acre tract, the deed clearly excepted from the conveyance all of the described tract “on the northwest side of the center line of the above named branch.” “[I] think it manifest that such description was sufficient to render the identification of the land excepted practicable by extrinsic evidence, and that the exception was therefore valid.” Hollywood Cemetery Corp. v. Hudson, supra at 274. “[T]his exception furnishes a key by which the land excepted can be ascertained.” Richardson v. Ga. Kraft Co., supra at 744. Thus, because Durden did not show that, as a matter of law, there was no exception to the 1945 conveyance of the 50-acre tract, the trial court correctly denied Durden’s motion for partial summary judgment.

I am authorized to state that Justice Fletcher joins in this opinion.