There being some evidence that the claimant was entitled to a part of the property she alleged was hers, the trial judge did not err in overruling a motion for a judgment notwithstanding the mistrial.
Ludella Flood interposed her claim against a proposed sale of certain described property by Ida Flood Henderson and Joe West, as co-administrators of the estate of Minnie Flood West, deceased. The claim, filed in the Whitfield Superior Court, alleged the co-administrators had published notice of their intention to apply to the ordinary for an order to sell the described property; that the property as described was not the property of the estate, but certain property which was included in the described property was "part of the property of this affiant"; that in compliance with Code 113-1715 the claimant filed "this her affidavit claiming the property described herein as the property of the affiant and says the same does not belong to the administrators' estate."
The claim was for two parcels of land, the first of which was described as follows:
"Certain portion of Lots 183 and 184 in the P. W. Huitt Estate, as per plat in Plat Book 1, Page 182 in the Clerk's Office, Whitfield County, Georgia. Said lots being in Land Lot 242 in the 12th District and 3rd Section of Whitfield County, Georgia, and being more fully described as follows: Beginning at a point 20 feet south of a certain well located on said lots on the driveway running on said lots;, thence in a northerly direction along said driveway a distance of 75 feet; thence in a westerly direction a distance of 150 feet to a wire fence; thence along said fence a southerly direction a distance of 75 feet; thence in an easterly direction a distance of 150 feet, more or less, to the driveway and point of beginning."
This lot was also designated as being "the same and identical property as conveyed to Martha Gray by C. J. Hester and to J. B. Headrick by Martha Gray as appears of record in Whitfield County Deed Records."
The second parcel was described as: "A tract of parcel of land and being a part of Lot No. 184 of the P. W. Huitt estate as shown in Plat Book 1, page 182 of the Deed Records of Whitfield County, Georgia, and being that tract which lies immediately north of the tract described in the deed from Dorothy Tankersley to J. B. Headrick and just south of the driveway or road which is the northern boundary of said tract being bounded as follows: On the south by the property of Ludella Flood; on the west by the property of Fox; on the north by the driveway or road; on the east by the property of Bryson."
Prior to the trial of the case Joe West died and Ida Henderson proceeded as sole administratrix of the estate. The following evidence was adduced at the trial.
The claimant testified that she lives off Chatsworth road "right in back of Union Point Methodist Church" where "the property" is located; that the property consists of "about one acre"; that there are two buildings on the property about 50 feet apart; that it is reached by going down an unnamed "old country road" and turning up a driveway; that, as to when she first moved in this house, she stated, "I moved in there when I bought it," nine years ago and "I still live there"; that the two houses were already on the property when it was purchased; that the intestate lived in the next house, moving there about one month before the claimant; that when the property was acquired "Mamma [intestate] paid for her part and I paid for mine." The claimant stated that she moved on to the property "after I bought it. I paid cash when I bought it." The claimant testified, in answer to the question whether she had $1,300 before or after she moved onto the property: "The $1,300 was paid before I moved on the property and the other was paid after . . ." She replied to a question regarding the "other $100" by stating "I bought the place when I moved there." But later, in response to a query as to what was the $100 transaction, testified: "we agreed on the line for the property and I paid her [intestate] $100 after I give her the $1,300."
When asked at what point she went into possession of the house and ground around it, where she had been living since 1954, the claimant related: "I just moved in the house and we all used the land when we needed it." In giving a description of the property the claim covered she merely stated: "It's not a square piece of land but it's kind of long shape land and it would be divided down near there." She testified there was a hedgerow on the place; that the intestate lived south and she lived north of it; that no one lived there, on a regular basis, since she moved in and purchased that home.
Roy Flood, a witness for the claimant, gave the following testimony: that he was a brother of the claimant and the administratrix; that the intestate bought the place and told him she had sold it to the claimant; that he was present during the transaction between the intestate and the claimant; that the claimant paid the intestate $1,100 "for a lot of the land"; that "she bought this" and the intestate "never gave her no deed to it"; that the $1,100 was paid in the living room of "our home place"; that "they wanted me to witness this trade" between the intestate and the claimant and "she paid" the intestate $1,100 "for that" and the intestate showed the witness the part she sold to the claimant. In this connection, the witness testified that the intestate "showed me there at the pasture fence that there should be a line about a hundred and fifty feet this way, and then she put her heel down about where she thought it would come to, and she showed me the other way and said it goes to the crabapple which was about 70 or 75 feet, and then back to the pasture fence."
The witness testified there was a large or big house and a little house on the property; that the little house was "up there," that the intestate spent "every night" at the little house with the claimant; that, however, the intestate never moved in the little house but just stayed there at night with the claimant. He related that the claimant moved into "this house" about a month after the intestate bought "the first place"; that the claimant bought the place, moved into the house and has been there ever since; that she has been on the tract of land he described "every day ever since" except for occasional visits.
Both the claimant and her brother testified that the intestate had made known to other members of the family that the claimant had purchased the lot from her.
Evelyn Flood, a witness for the administratrix, testified: that she first heard of Ludella Flood's claim about a week after her mother's death; that the claimant stated "she wanted the house"; that the houses were close together and members of the family stayed in both, although some members of the family referred to part of the property as being the claimant's. She explained that she hadn't ever heard that the house where the claimant lived belonged to her.
The administratrix, Ida Henderson, testified: that the first she heard concerning Ludella Flood's claiming the property was about a week after the intestate's death; that the intestate bought "the first place" in 1954 and two months later purchased the "Paxton" house where the claimant lives or, as the administratrix explained it, where "her furniture is"; that the "Paxton" house was down the hill or, as they referred to it, "down there"; that she had heard the house "down the hill" referred to as the claimant's or "down there at Ludella's."
Both the administratrix and her witness denied that there had been a sale or any mention of a transaction between the intestate and the claimant. Both pointed out that the claimant lived on the property as one of the family and shared the facilities just like the rest of them.
At the close of the evidence, the administratrix moved for a directed verdict on the ground that a verdict in her favor was demanded by the evidence. The trial judge overruled the motion and, the jury being unable to agree on a verdict, declared a mistrial. The administratrix duly filed a "motion for a judgment notwithstanding the failure of the jury to return a verdict," which in detail categorized the evidence asserted by the movant to demand a judgment in her favor. Upon the trial court's judgment overruling the motion the plaintiff excepts and assigns error.
This is a case in which the administrators of the estate of Minnie Flood West made application to sell a described tract of land. Ludella Flood interposed a claim to a portion of the tract to be sold. On the trial of the claim, the claimant predicated her title to the realty in question upon a parol sale of the property to her by her mother, the intestate. The evidence submitted by her showed requisites of a fully executed parol sale of land by the intestate to the claimer, the proof of the sale being by the testimony of a third party who professed to have witnessed the sale and to have seen its consummation by payment of the purchase money. The same witness and the claimant testified as to her going into possession of the bargained premises. However, the administratrix contends that the claimant's evidence was insufficient to identify the premises she claimed to have purchased. It is upon this deficiency in the evidence submitted that the administratrix bases her contention that she was entitled to a judgment notwithstanding the mistrial.
In considering the question of whether the evidence sufficiently described the tract of land set out in the claim or any part thereof, the rule is: "no amount of words in . . . a contract which fail to lead definitely to the land therein will constitute a key. If such words, when aided by extrinsic evidence, fail to locate and identify a certain tract of land, the description fails and the instrument is void." Savannah River Lumber Corp. v. Sharpe, 213 Ga. 72
, 75 (97 SE2d 303
). See Patrick v. Holliday, 200 Ga. 259
, 261 (36 SE2d 769
), where this court found the real estate to be definitely described in the petition, but held as to the evidence that there was no sufficient identification of the property and thus the requirements of the law were not met. Here the deeds referred to in the claim were not introduced into evidence and no evidence was adduced which supported the description of the entire tract of the property claimed.
Nevertheless, there was evidence sufficient to describe and locate a certain house. The house in question was described as the one in which the claimant lived for nine years and now resides. See Brice v. Sheffield, 118 Ga. 128 (2) (44 SE 843); Price v. Gross, 148 Ga. 137 (96 SE 4); Mitchell, Real Property in Georgia, pp. 90-91 (2d Ed. 1960). The house was further located as being on the property which the administratrix proposes to sell; it was described as being the little house (as contradistinguished from the big house) about 50 feet from the big house; and that there were only two houses on the described property. The house was referred to as the house down the hill or "down there"; there was testimony that it was on the driveway and that it lay on the other side of a hedgerow from the big house; the administratrix referred to it as the "Paxton" house. All these facts, while not definitely pinpointing the exact location of the house, would be sufficient to identify the house. Furthermore, there was evidence that the claimant bought the house for which she paid a certain sum to the intestate. Hence, there was some evidence of a parol sale of the house.
The rule is well settled that "where an action is brought for an entire tract of land, the plaintiff may recover a portion thereof, if he shows title to the same . . ." Alexander v. Thompson, 129 Ga. 255, 257 (58 SE 836). Bailey v. Jones, 14 Ga. 384 (2); Hogg v. Gammon, 127 Ga. 296 (56 SE 404). Moreover, "the interest which will support a claim under our statute, is any interest which renders the property not subject to the levying fi. fa. or attachment, or which is inconsistent with the plaintiff's right to proceed in selling the property." Butler v. LaGrange Banking &c. Co., 177 Ga. 714 (1) (170 SE 918); Wade & Co. v. Hamilton, 30 Ga. 450 (2); Ehrlich & Co. v. King, 34 Ga. App. 787 (1) (131 SE 524). See Rowland v. Gregg & Son, 122 Ga. 819 (50 SE 949); Deariso & Co. v. Lawrence, 3 Ga. App. 580 (60 SE 330).
On a motion for a judgment notwithstanding the mistrial the rule is, "where the evidence authorizes a verdict for the plaintiff in some amount, a motion for a judgment notwithstanding the mistrial is without merit." Tingle v. Kelly, 94 Ga. App. 138 (93 SE2d 773)
. See Ready-Mix Concrete Co. v. Rape, 98 Ga. App. 503 (5) (106 SE2d 429)
. Thus, we can not say that there was no issue to present to the jury or that the evidence demanded a verdict for the administratrix.
Judgment affirmed. All the Justices concur.