Summary
holding that petition to quiet title must include "a plat of survey and copies of any written instruments upon which [the plaintiff]'s interest . . . is based"
Summary of this case from West v. Wells Fargo Bank, N.A.Opinion
S02A0630.
DECIDED: JULY 15, 2002
Title to land. McIntosh Superior Court. Before Judge Rahn.
Vincent D. Sowerby, for appellant.
Adam S. Poppell III, for appellee.
Solomon Bryan and others brought an action to quiet title concerning a 12.164 acre parcel of land in McIntosh County, Georgia. The petition alleges a chain of title beginning with an unrecorded deed in 1884, followed by a series of conveyances up to the present. The proceedings were submitted to a special master. GHG, Inc. asserted an adverse claim. The special master determined that petitioners are the equitable owners of the property and that no other person has any claim of right to the land. The trial court adopted the findings and recommendation of the special master and decreed that fee simple title is in the petitioners. GHG appeals.
1. GHG asserts that the trial court erred in failing to dismiss the petition for failure to state a claim upon which relief can be granted.
Under OCGA § 23-3-62(b), a petition to quiet title must contain a particular description of the land, a specification of the petitioner's interest in the land, and whether that interest is based upon a written instrument, adverse possession, or both. In addition, the petition should be accompanied by a plat of survey and copies of any written instruments upon which petitioner's interest or that of an adverse claimant is based. OCGA § 23-3-62(c). A petition is subject to dismissal only when on the face of the pleadings it appears that it is in noncompliance with OCGA § 23-3-62. In that case, "[n]o evidence which might be introduced within the framework of the complaint could sustain a grant of the relief sought." In re Rivermist Homeowners Assn., 244 Ga. 515, 520 ( 260 S.E.2d 897) (1979). Bryan's petition established a claim of current title based upon a series of recorded and unrecorded instruments as well as by prescription, and otherwise satisfied the statutory requirements. The petition was not subject to dismissal. See Smith v. Georgia Kaolin Co., 264 Ga. 755 (3) ( 449 S.E.2d 85) (1994); Rivermist Homeowners, supra.
2. GHG's demand for a jury trial was made after the hearing before the special master and, therefore, was untimely. Brown v. Wilson, 240 Ga. 856 (1) ( 242 S.E.2d 603) (1978); Thornton v. REB Properties, 237 Ga. 59 ( 226 S.E.2d 741) (1976); Griffeth v. Griffin, 245 Ga. App. 619 ( 538 S.E.2d 521) (2000). Accordingly, GHG was not entitled to a jury trial for any of the reasons advanced.
3. GHG claims that OCGA § 23-3-67 violates due process because it compels the trial court to issue its decree upon receipt of the special master's report and does not provide any means by which a party can contest that report. Assuming that this argument was raised in the trial court, it was not directly addressed by the court below. "We will not rule on a constitutional question unless it clearly appears in the record that the trial court distinctly ruled on the point." (Punctuation omitted.) Haynes v. Wells, 273 Ga. 106, 108(3) ( 538 S.E.2d 430) (2000).
4. GHG submits that the findings of the special master and the judgment are contrary to the evidence. Where there is no transcript of the proceedings, the findings of the special master cannot be reviewed. SeeGlenn v. Allen, 239 Ga. 646 (1) ( 238 S.E.2d 438) (1977).
Judgment affirmed. All the Justices concur.