Opinion
14165.
JULY 15, 1942.
Complaint for land. Before Judge Evans. Bulloch superior court. February 25, 1942.
John F. Brannen, for plaintiff in error.
George M. Johnston, contra.
1. Plaintiffs' title to the land, for recovery of which their suit in ejectment was brought, having been established, and defendant having under the evidence failed to prove his claim of title based on adverse possession and acquiescence in dividing line and on the question of title, there being no other verdict that could be sustained, the trial judge properly directed the verdict for the plaintiffs.
2. No error is shown in the grounds of motion for new trial, all of which are controlled on the question of title by what is said in the first division of the opinion.
No. 14165. JULY 15, 1942.
In 1915 and previously Cecil W. Brannen owned and was in possession of a tract of land in Bulloch County, consisting of 290 acres. In September of that year the county surveyor made a plat of the land, and in October of the same year Brannen conveyed the tract, by deed to secure debt, to Chickamauga Trust Company. This plat was by reference made a part of the deed, and together they were recorded. The land was described as in accordance with the metes and bounds fixed and marked on the plat. In April, 1919, Brannen purchased from Oliff another tract of land containing 6.81 acres. This was conveyed to him by deed, and at the time Brannen had a plat of it made by the county surveyor and this deed and plat were duly recorded. This tract adjoined the 290-acre tract, but was not included in the conveyance to Chickamauga Trust Company. A fence enclosed the entire tract, including that last purchased, and Brannen through tenants remained in possession until February, 1932, when he died. When this fence was built does not appear. There was no reference to the enclosure, and no other identification of the tract conveyed to Chickamauga Trust Company or in other conveyances to be later mentioned, except as already stated by reference to the recorded plat of the 290-acre tract. In June, 1933, the Reserve Loan Life Insurance Company, the holder of the security deed conveying the 290 acres, foreclosed it and became the purchaser. The sale of the land under foreclosure was advertised and made according and by reference to the plat, and the conveyance in pursuance of the sale was so made. There were subsequent sales and conveyances of the land, in which it was referred to as "more particularly described by a plat of said lands made by Jno. E. Rushing September, 1915, which plat is of record," etc., this being the plat referred to. It was finally so conveyed to J. V. Hardy in October, 1935. Under Brannen and the various subsequent owners, D. A. Edenfield, up to this last purchase, had been tenant and in actual possession of all the land (both tracts) under the one enclosure. Hardy, then went into possession, soon after which he was notified that the heirs at law of Brannen claimed the 6.81-acre tract. In April, 1941, these heirs filed the present suit in ejectment against Hardy, to recover this smaller adjoining tract, possession of which he had refused to surrender. The basis of Hardy's claim, as stated in his answer, was as follows: "Defendant says that for a period of more than seven years by acts and declarations of adjoining landowners has established the said fence as the land line and said fence includes the tract of land in question. The same has been acquiesced in by all parties for more than seven years. The said fence has been established by the predecessors in title of both plaintiff and defendant, and has been acquiesced in for a period of more than seven years, which established it as the true line between the parties." He later set up by amendment that the acquiescence in the dividing line, which would include as his this smaller tract, had obtained for more than twenty years and had been "by agreement by defendants' predecessors in title," and that the line, alleged to be the fence enclosing both tracts, "had been there for more than thirty years and each subsequent grantee from 1909 to the present time has recognized the said line," etc. Upon these issues the case went to trial. The plaintiffs proved their case, which was laid in accordance with the facts first stated above. It was further shown, without dispute, that Edenfield, the tenant, when he occupied this smaller tract along with the other after Brannen's death, did so with permission of Mrs. Brannen, but paid no rent, because of the small value of it. Hardy testified, in substance, that he thought he bought all of the land enclosed, and went into and had remained in possession of all of it; that the fence was once pointed out to him by the tenant, Edenfield, as "the dividing line on one side;" also that he thought, when he returned his property for taxes and paid them, that this smaller tract was included in a gross total of 309 acres. Cone, who conveyed the 290-acre tract to Hardy, testified that when he bought the place in 1934 he thought be bought all the land enclosed. A witness, Hart, testified that his wife owned lands adjoining Hardy (apparently referring to the smaller tract in question), and that the fence was recognized by him as the line in 1910. This was during or before Brannen's ownership of the 290-acre tract and nine years before Brannen purchased the smaller tract.
The judge directed a verdict for the plaintiffs, and refused a new trial.
1. "Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control so far as limits are concerned, as if such descriptive features were written out on the face of the deed or grant itself. Cragin v. Powell, 128 U.S. 691 ( 9 Sup. Ct. 203, 32 L. ed. 566); Schreck v. Blun, 131 Ga. 489 ( 62 S.E. 705); Thompson v. Hill, 137 Ga. 308 ( 73 S.E. 640); Aiken v. Wallace, 134 Ga. 873 ( 68 S.E. 937)." State v. Ga. Ry. Power Co., 141 Ga. 153, 156 ( 80 S.E. 657); Tilley v. Malcolm, 149 Ga. 514 ( 101 S.E. 127). Applying the foregoing principle to the facts of the present case, the defendant could not claim any possession under "written evidence of title," and thus could not claim any title by prescription under provisions of the Code, § 85-407. Berry v. Clark, 117 Ga. 964, 966 ( 44 S.E. 824). Nor could his own possession and that of his predecessors in title back to 1933 (when possession by Brannen terminated as to the 290-acre tract) be considered as extended to both tracts in the enclosure, under the Code, §§ 85-404 or 85-405. This is true because he had no paper title to the smaller tract. He makes no claim of such adverse possession (for twenty years) as would give him title under the Code, § 85-406. Likewise, there was nothing in the case to involve "general reputation in the neighborhood . . as to ancient landmarks of more than thirty years standing," as contended in behalf of the defendant under the Code, § 85-1602. There was no dispute about boundaries really involved, as contended. As the judge remarked in the course of the trial, the dispute was not as to boundaries, but as to title. In Standard Oil Co. v. Allman, 173 Ga. 777, 779 ( 161 S.E. 353), where the action was brought as a complaint for land, it was said: "But to make that line as a matter of law the true dividing line, in a suit for land where title is involved, it should be made to appear that the defendants had good paper title to the land up to that line and had had bona fide possession of the same for a period of seven years." Shahan v. Watkins, 194 Ga. 164 ( 21 S.E.2d 58). So far as acquiescence in a dividing line is concerned, it is obvious that the fence of enclosure was the true dividing line between Brannen's property and that of some adjoining-land owner (not clearly identified in the record), but that had no reference to the land conveyed to Hardy. Brannen owned and had title to the smaller tract and there was no dispute about it. Neither Hardy nor any of his predecessors in title as to his purchase owned it. After 1933 they were in possession of it, but even then until Hardy himself entered (less than seven years before the suit) the possession under the record was permissive as to the Brannen heirs.
The defendant completely failed to make out any claim of title; and that of the plaintiffs being established, the verdict was properly directed in their favor. None other could have been sustained.
2. While there were various special grounds of the motion for new trial, they all sought by different means to raise the question dealt with and controlled by what has been stated in the foregoing discussion.
Judgment affirmed. All the Justices concur.