Dubberly v. Chapman
Dubberly v. Chapman
Opinion of the Court
John E. Dubberly brought complaint for land against A. L. and D. C. Chapman, alleging that J. E. Chapman, the father of the defendants, died in the year 1890, a resident of Wayne County, and in possession of a tract of land of about 1400 acres in the southeastern portion of the Mt. Pleasant district of said county; and that after the death of J. E. Chapman there was set apart to his widow a year’s support consisting of certain described lands. The description of the land was as follows: “A part of the old homestead and fifty acres of land around the old premises, being where the said J. E. Chapman was living at the time of his death, and a part of said 1400-acre tract and lying and being in Wayne County, Georgia. A plat of said parcel of land so set apart as a year’s support is hereto attached and made a part hereof, marked Exhibit A.” It is further alleged that on September 15, 1896, the petitioner became the owner, through purchase from the widow, of said parcel of land so set apart, and is now the true and lawful owner of the same; that the defendants, without any actual bona fide claim and without any lawful warrant or authority, have entered upon the said tract of land and are now in possession thereof, and refuse to surrender same to petitioner. The prayers are for recovery of the land and mesne profits, and for the production of certain documentary evidence. The defendants made a motion to dismiss the petition, upon the ground that “the description as set forth in the petition is insufficient upon which to base a recovery of said land.” Thereupon the plaintiff offered an amendment alleging that “the old homestead of J. E. Chapman and his dwelling was located at the point where the word ‘settlement’ appears on the plat and 250 feet northeast of the oaks marked on said plat, and the said word ‘oaks’ being intended to represent
We are of the opinion that the court erred in refusing to allow the amendment, and in dismissing the action. The allegations in the petition and the amendment, when construed with reference to the map attached as an exhibit, sufficiently identify the parcel of land sued for, as against a general demurrer. It may be true that the land is not precisely identified and located, but the allegations afford a basis for introduction of aliunde evidence to make precise the boundaries of the tract of land. The map attached to the exhibit does not show by whom it was made, or when it was made, or whether it was made by the county surveyor at the time of the setting apart of the year’s support; nor is there any copy of the proceedings in the court of ordinary, or of the order of the court of ordinary setting apart the year’s support; but there was no special demurrer to the petition upon this ground. The map is alleged to be “a plat of land so set apart as a year’s support.” If this map had been offered as evidence, without some showing as to who made it, when it was made, and whether or not it was a part of the return of the appraisers or commissioners, it would have been objectionable; but, relatively to the demurrer that was filed, it is to be treated as a part of the allegations showing a description of the land sued for. If, instead of attaching such a map or plat, the petitioner had given a description of the land as it is marked upon this map, that, taken in connection with the allegation in the petition, would have been sufficient to withstand the general demurrer. We do not overlook the ruling made in the case of McSwain v. Ricketson, 129 Ga. 176 (58 S. E. 655), where it was held: “The judgment setting apart the year’s support being, in effect, a conveyance to her of the interest of her deceased husband in the property, the description of the property must be such as to render it capable of identification. If the description is so vague and indefinite that
Viewing the map or plat attached in this case in connection with the description given in the petition, we have a tract of fifty acres of land. On that map is marked the location of certain oak trees, which it is alleged are standing on the premises; and it is also alleged in the amendment that there are now on said lands the evidence of old buildings and an old fence row around said old premises and said oaks. There are also other marks given on this plat, and the lines definitely marked by length and direction. These marks
Judgment reversed.
Reference
- Full Case Name
- DUBBERLY v. CHAPMAN
- Status
- Published