Each part of deed given effect, if possible.

- Trend of the modern authorities is toward the restriction of the rule that when there are two utterly inconsistent clauses in a deed, the former must prevail; each part of a deed is given effect, if possible. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948).

Inconsistency, to be void, must be totally inconsistent, it must destroy the estate; if it only fetters it or qualifies it, it is still good. Aetna Ins. Co. v. Brodinax, 48 F. 892 (C.C.S.D. Ga. 1883), aff'd, 128 U.S. 236, 9 S. Ct. 61, 32 L. Ed. 445 (1888). See also Central R.R. & Banking Co. v. Mayor of Macon, 43 Ga. 605 (1871); White v. Hopkins, 80 Ga. 154, 4 S.E. 863 (1887); Burnett v. Summerlin, 110 Ga. 349, 35 S.E. 655 (1900).

Granting clause in a deed does not control other clauses. Cole v. Thrasher, 246 Ga. 683, 272 S.E.2d 696 (1980).

Conveying clause prevails over habendum clause.

- All the provisions of a deed should be given effect and made to harmonize when possible, but if there should be any repugnancy between the conveying clause and the habendum clause, the conveying clause will prevail. Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943).

Particular description prevails over general one.

- When a deed contains two descriptions of the land conveyed, one general and the other particular, if there is any repugnance, the particular description will prevail. Harlan v. Ellis, 198 Ga. 678, 32 S.E.2d 389 (1944).

Most material and certain part of description prevails.

- In construing conveyances of land, effect is to be given to every part of the description, if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of the description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain. Patrick v. Sheppard, 182 Ga. 788, 187 S.E. 379 (1936).

Distances and computed contents yield to ascertained boundaries and monuments.

- In construing a deed to land, that which is most material and most certain should prevail over that which is less material and less certain, and distances and computed contents should yield to ascertained boundaries and monuments. Stewart v. Latimer, 197 Ga. 735, 30 S.E.2d 633 (1944).

Extrinsic evidence can aid court in fitting description to property.

- Description of the land is not too indefinite if the court can, with the aid of extrinsic evidence which does not add to, enlarge, or in any way change the description, fit it to the property conveyed by the deed. Patrick v. Sheppard, 182 Ga. 788, 187 S.E. 379 (1936).

Description by plat controls over descriptive words.

- When the descriptive clauses in a deed contain particular words of description, and also refer to a plat, and the plat is more definite than the particular words of description, the description by plat shall control as to the property conveyed. Patrick v. Sheppard, 182 Ga. 788, 187 S.E. 379 (1936).

Prior or contemporaneous oral agreement fixing different metes and bounds not competent evidence.

- While extrinsic evidence may in a proper case be admitted for the purpose of applying a description to subject matter, it is not competent to show that there was an oral agreement between the grantor and the grantee in a deed of conveyance, made prior to or contemporaneously with the deed's execution, fixing metes and bounds different from those specifically set forth in the deed itself. Stewart v. Latimer, 197 Ga. 735, 30 S.E.2d 633 (1944).

Deeds are to be taken most strongly against the agent or contractor, inasmuch as the instinct of self-preservation will always make men sufficiently careful to protect themselves - verba fortius accipiuntur contro proferentem. Harmon v. First Nat'l Bank, 50 Ga. App. 3, 176 S.E. 833 (1934).

Construction favoring grantee preferred.

- When all other means of ascertaining the true construction of a deed fail, and a doubt still remains, that construction is rather to be preferred which is most favorable to the grantee. Harmon v. First Nat'l Bank, 50 Ga. App. 3, 176 S.E. 833 (1934).

As to construction of bill of sale, see Felder v. Middleton Hdwe. Co., 66 Ga. App. 572, 18 S.E.2d 574 (1942).

Effect of

§ 44-5-60 on easements. - After the State Highway Department obtained a right-of-way over a strip of land, and the plaintiff's predecessor in title reserved a parking easement, the parties to the 1954 conveyance intended an appurtenant easement in favor of the land. Thus, the trial court erred in granting the Department of Transportation's motion for summary judgment because the limitation period of O.C.G.A. § 44-5-60(b) applies to restrictive covenants not easements such as in this case. Brown v. DOT, 195 Ga. App. 262, 393 S.E.2d 36 (1990).

Controlling rule is to ascertain intention of parties to deed.

- In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, the deed should be given effect, regardless of mere literal repugnancies in different clauses of the conveyance. Aycock v. Williams, 185 Ga. 585, 196 S.E. 54 (1938); Guess v. Morgan, 196 Ga. 265, 26 S.E.2d 424 (1943).

In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. If that intention is plain from the language of the deed as a whole, and the intention contravenes no rule of law, the deed should be given effect. Moore v. Wells, 212 Ga. 446, 93 S.E.2d 731 (1956).

In the construction of deeds, as well as other contracts, the paramount, essential, and controlling rule is to ascertain the intention of the parties. Prescott v. Herring, 212 Ga. 571, 94 S.E.2d 417 (1956).

Cardinal rule for the construction of a deed is to ascertain the intention of the parties. The whole instrument is to be construed together, so as to give effect, if possible, to the entire deed, and in this way ascertain from the instrument's terms the real intention of the parties; and the construction which will uphold a deed in whole and in every part is to be preferred. Leavell v. State Hwy. Dep't, 121 Ga. App. 112, 173 S.E.2d 124 (1970).

Determining whether grant is easement or fee.

- Grant, whether of easement or fee, should be construed to carry out intentions of parties. Georgia Power Co. v. Leonard, 187 Ga. 608, 1 S.E.2d 579 (1939).

Intention of parties crucial test in determining whether instrument grants easement or title.

- In determining whether an instrument grants an easement in, or conveys title to, land, the crucial test is the intention of the parties, and the whole instrument must be looked to, and recitals in the instrument, subject matter, object, purpose, and nature of restrictions or limitations, if any, or the absence of such, and attendant facts and circumstances of the parties at the time of making the instrument are all to be considered. Danielsville & Comer Tel. Co. v. Sanders, 209 Ga. 144, 71 S.E.2d 226 (1952).

Substance, rather than technical nicety in the location of clauses in a deed, is controlling, the intention of the parties being the cardinal rule of construction. Cole v. Thrasher, 246 Ga. 683, 272 S.E.2d 696 (1980).

Deed construed as whole.

- One of the most important rules in the construction of deeds is to so construe the deeds that no part or words shall be rejected. The courts lean to such a construction as reconciles the different parts, and reject the construction which leads to a contradiction. Of course, a deed or other contract should be construed as a whole, and in its entirety, in order to find the true intention of the parties. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948).

In construing a deed, effect must be given, if practicable, to every part of the description of the land conveyed, and if two clauses in a deed are utterly inconsistent, the former shall prevail, but the intention of the parties from the whole instrument should, if possible, be ascertained and carried into effect. Prescott v. Herring, 212 Ga. 571, 94 S.E.2d 417 (1956).

Doctrine of repugnant clauses is not favored; the terms of the whole instrument are to be construed together to give effect to the entire deed and to uphold the intention of the grantor. Cole v. Thrasher, 246 Ga. 683, 272 S.E.2d 696 (1980).

If intent obvious, repugnant parts of description rejected.

- Trend of modern authorities is to give effect to every part of a deed if possible, and if this cannot be done, and there is an obvious intent derivable from the face of the instrument, the tendency is to reject only superadded parts which are repugnant thereto, if it can be done without violating some rule of law. Thompson v. Hill, 137 Ga. 308, 73 S.E. 640 (1912). See also Hatton v. Johnson, 157 Ga. 313, 121 S.E. 404 (1924); Clark v. Robinson, 162 Ga. 395, 134 S.E. 72 (1926); Holder v. Jordan Realty Co., 163 Ga. 645, 136 S.E. 907 (1927).

In construing conveyances of land, effect is to be given to every part of the description, if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances of description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as false or mistaken. What is most material and most certain in a description shall prevail over that which is less material and less certain. Prescott v. Herring, 212 Ga. 571, 94 S.E.2d 417 (1956).

Court looks at surrounding facts.

- Recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail over the latter, but the whole language of the deed is to be construed together in order that the true construction may be ascertained; in such a case, the court will look into the surrounding facts, and will adopt that construction which is the most definite and certain, and which will carry out the evident intention of the parties. Stewart v. Latimer, 197 Ga. 735, 30 S.E.2d 633 (1944); Floral Hills Memory Gardens, Inc. v. Robb, 227 Ga. 470, 181 S.E.2d 373 (1971).

Recitals in a deed, the contract, the subject matter, the object, purposes, and nature of the restrictions or limitations, if any, or the absence of such, and the attendant facts and circumstances of the parties at the time of the making of the conveyance are all to be considered in arriving at the intention of the parties. Jackson v. Rogers, 205 Ga. 581, 54 S.E.2d 132 (1949).

Poorly drawn contract not defeated when intent discoverable.

- When the contract was admittedly poorly drawn, this alone would not defeat the contract's purpose if the parties intended that the plaintiff retain title until the purchase money was paid. However unskillfully a deed may be prepared, it is the duty of the courts to discover and give effect, if possible, to the intent of the parties. Skinner v. Bearden, 77 Ga. App. 325, 48 S.E.2d 574 (1948).

"And/or" clause interpreted.

- Clause "and/or her daughter" in a deed would be interpreted to pass a free title to the taxpayer and her daughter as equal tenants in common. 1965-66 Op. Att'y Gen. No. 66-148.

Am. Jur. 2d.

- 23 Am. Jur. 2d, Deeds, § 192 et seq.

C.J.S.

- 26A C.J.S., Deeds, § 188 et seq.

ALR.

- Rule that particular description in deed prevails over general description, 72 A.L.R. 410.

Conflict between granting and habendum clauses as to estate conveyed, 84 A.L.R. 1054; 58 A.L.R.2d 1374.

Phrase "from and after" death of life beneficiary as affecting character of remainder as vested or contingent, 103 A.L.R. 598.

Meaning of term "issue" when used as a word of purchase, 117 A.L.R. 691.

Reference in deed or mortgage to proportion of larger tract, inconsistent with other terms descriptive of property covered, 127 A.L.R. 1040.

Deed as conveying fee or easement, 136 A.L.R. 379.

Water as within term "minerals" in deed, lease, or license, 148 A.L.R. 780.

Rules as to interpretation of description of real property as applicable to description in judgment, 150 A.L.R. 773.

Validity of reservation of oil and gas or other mineral rights in deed of land, as against objection of repugnancy to the grant, 157 A.L.R. 485.

Use of word "joint" or "jointly" in provision of deed other than the granting or habendum clause as indicating intent to create a joint tenancy rather than one in common between the grantees, 157 A.L.R. 566.

Judgment based on construction of instrument as res judicata of its validity, 164 A.L.R. 873.

Construction and effect of provision of deed for sharing of profits in event of discovery of minerals, oil, or gas, 173 A.L.R. 1104.

Construction and application of provision of deed, mortgage, lease, or land contract covering personal property on, attached or used in connection with the premises, 175 A.L.R. 404.

Construction and application of covenant restricting use of property to "residence" or "residential purposes", 175 A.L.R. 1191.

What constitutes oil or gas "royalty," or "royalties," within language of conveyance, exception, reservation, devise, or assignment, 4 A.L.R.2d 492.

Written matter as controlling printed matter in construction of deed, 37 A.L.R.2d 820.

Oil and gas as "minerals" within deed, lease, or license, 37 A.L.R.2d 1440.

Quantum or character of estate or interest created by language providing premises as a home, or giving or granting same for such use, 45 A.L.R.2d 699.

Description with reference to highway as carrying title to center or side of highway, 49 A.L.R.2d 982.

Conflict between granting and habendum clauses as to estate conveyed, 58 A.L.R.2d 1374.

Construction and effect of provision for payment of damages to "crops" or "growing crops" in mineral deed or lease, or in conveyance of pipeline or other underground easement, 87 A.L.R.2d 235.

Value of property as factor in determining whether deed was intended as mortgage, 89 A.L.R.2d 1040.

Estate created by deed to one and his "blood heirs" or "blooded heirs,", 89 A.L.R.2d 1222.

Deed to railroad company as conveying fee or easement, 6 A.L.R.3d 973.

Time to which condition of remainderman's death refers, under gift or grant to one for life or term of years and then to remainderman, but if remainderman dies without issue, then over to another, 26 A.L.R.3d 407.

Which of conflicting descriptions in deeds or mortgages of fractional quantity of interest intended to be conveyed prevails, 12 A.L.R.4th 795.

May easement or right of way be appurtenant where servient tenement is not adjacent to dominant, 15 A.L.R.7th 1.