Opinion
19466, 19481.
ARGUED SEPTEMBER 11, 1956.
DECIDED OCTOBER 8, 1956. REHEARING DENIED DECEMBER 5, 1956.
Equitable petition. Before Judge Perryman. McDuffie Superior Court. June 11, 1956.
Stevens Stevens, Robert L. Stevens, for plaintiff in error.
Kenneth Goolsby, Randall Evans, Jr., contra.
The trial court erred in denying the motion for new trial on the general grounds. The assignments of error in the cross-bill of exceptions are without merit.
ARGUED SEPTEMBER 11, 1956 — DECIDED OCTOBER 8, 1956 — REHEARING DENIED DECEMBER 5, 1956.
Mrs. Mamie M. Guy brought an equitable petition against George O. Poss, and alleged: The defendant made a warranty deed to the plaintiff on October 10, 1946, conveying real property described in part as follows: "One hundred ten (110) acres, more or less, and being bounded as follows, the names being given as past or present owners: North and east by said Columbia Mines land; south by lands of Daniel Story; and west by lands of Edmund Pettit. This is the identical tract of land described in a deed from Eliza Reid and Henry Stone to George Poss, which deed is dated December 30th, 1944, and which is recorded in the office of the Clerk of Superior Court of McDuffie County, Georgia, in Deed Book `29', folios 163-164, and by reference said deed is made a part of this description." The plaintiff has held possession of the described land openly, notoriously, and adversely as against all persons whomsoever, including the defendant, for more than seven years. In February, 1955, the plaintiff was attempting to sell certain timber located on the described land, when she received a letter written by an attorney for the defendant, stating that the defendant was the owner of 55 acres of land, described in the letter, and that any entry upon the property described would constitute a wilful trespass. Approximately eleven months after the defendant made the described warranty deed to the plaintiff, named persons made a warranty deed to the defendant, conveying property described, in part, as follows: "Fifty-five (55) acres, more or less, and bounded as follows: On the north by lands of the Columbia Mines; on the east by other lands of George Poss; on the south by lands of Story Brothers and on the west by lands of Edmund Pettit." This tract of 55 acres is contained in, and is a part of, the 110 acres of land described in the deed which the plaintiff obtained from the defendant. If the defendant acquired any interest or title in the 55 acres of land, after making the warranty deed to the plaintiff, the equitable interest and title so acquired immediately passed to the plaintiff, and the defendant is estopped by law from adversely claiming the 55 acres. Through the letter written by the defendant's counsel, the defendant is threatening legal action to her successors in title in the event the plaintiff sells the timber from the 55 acres. In addition to interfering with the sale of the timber on the described land, the defendant has gone through the property of the plaintiff and has undertaken to mark or blaze a land line through the 110 acres, attempting to cut off for himself the 55 acres. All of the acts of the defendant set out in the petition are causing her irreparable injury and damage, and she has no complete and adequate remedy at law.
The prayers were: that the court decree an equitable estoppel against the defendant's adversely claiming any interest or title in the 110 acres of land; that the plaintiff be decreed to own all of the 110 acres, under the warranty deed made to her by the defendant, as against all claims of the defendant; that the title and interest obtained by the defendant through the deed conveying 55 acres of land to him be decreed to be in the plaintiff; that the defendant be enjoined from interfering with the peaceful enjoyment of the 110 acres or any part thereof, from interfering with the sale of the timber or the land, from going upon the property, and from marking trees or doing any other injury to the trees; and that rule nisi and process issue.
In the answer of the defendant as amended, he contended that the tract of 110 acres sold by him to the plaintiff and the tract of 55 acres conveyed to him at a later date were two different tracts. He set out the history of the conveyances affecting the title to the land involved, and asserted that the 55 acres conveyed to him subsequently to his deed to the plaintiff were not included in the land which he had conveyed to her. He alleged circumstances which he contended showed laches on the part of the plaintiff in delaying her action for more than seven years after the date of the record of his deed. He asserted that he and the husband of the plaintiff, acting as her agent, made an oral agreement establishing a boundary line between the tract of 55 acres and the tract of 110 acres.
During the trial of the case, the defendant made an oral motion in the nature of a general demurrer to strike the petition, on the ground that it contained no legal or equitable cause of action. This motion was denied. The jury returned a verdict in favor of the defendant. The plaintiff made a motion for new trial, which was later amended, and the court denied this motion.
The main bill of exceptions assigned error on the denial of the motion for new trial. By cross-bill the defendant assigned error on the denial of his oral motion to strike the petition, and on other rulings unfavorable to him.
1. The evidence of the parties is in conflict as to whether the tract of 55 acres claimed by the defendant would be necessary to make the amount of 110 acres sold by him to the plaintiff, and there is no evidence that a survey has been made to determine this fact. However, the warranty deed from the defendant to the plaintiff described the land conveyed as being "110 acres, more or less," and it clearly appears that the boundaries given in the description in this deed include the tract of 55 acres claimed by the defendant. The deeds of the plaintiff and the defendant described the land conveyed as being bounded on the west by the lands of Edmund Pettit. The defendant testified, in part, in this connection: "In describing the deed to Mrs. Mamie M. Guy that Pettit property was not on the west, that was a mistake. I did not own the land between Mrs. Guy's western line and the Edmund Pettit place when I sold that to Mrs. Guy . . . I signed the deed to Mrs. Guy for 110 acres, but I didn't make it. Mr. D. Guy made the deed up. Though I signed the deed, I do contend that I am not bound by the description I gave Mrs. Guy, because they made a mistake in here. . . As to if there is a mistake in the deed, did it include this 55 acres of land I am now claiming, in the boundaries I signed, yes." The deed from Eliza Reid and Henry Stone to the defendant, conveying 110 acres, more or less, described the property as bounded on the west by the lands of Edmund Pettit.
"The maker of a deed cannot subsequently claim adversely to his deed under a title acquired since the making thereof. He is estopped from denying his right to sell and convey." Code § 29-111. "If a vendor conveys land by deed to his vendee before he has title himself, and afterwards the vendor acquires title, his subsequent title inures to the benefit of the vendee, and a complete title is vested in the vendee the moment the vendor acquires it." Donalson v. Yeates, 173 Ga. 30 (7) ( 159 S.E. 856); Hill v. O'Bryan Brothers, 104 Ga. 137, 142 ( 30 S.E. 996); Todd v. Williford, 169 Ga. 543, 549 ( 150 S.E. 912); Morris v. Butler, 184 Ga. 845 ( 193 S.E. 883).
There were no pleadings in the case by the defendant seeking to reform his deed to the plaintiff. The testimony of the defendant that he did not own the property to the Edmund Pettit boundary at the time he made the warranty deed to the plaintiff, and that he did not intend to convey a part of the tract described in his deed to the plaintiff, could not, in the absence of appropriate pleadings seeking reformation of the deed to the plaintiff, make an issue of fact for the jury. Oliver v. Holt, 141 Ga. 126 (4) ( 180 S.E. 630); Kennedy v. Kennedy, 183 Ga. 432, 440 ( 188 S.E. 722, 109 A.L.R. 1143).
Since the title of the plaintiff was perfected in the acquisition by the defendant of title to the property included in the description of the land previously conveyed to the plaintiff, the plaintiff was under no duty to bring any action against the defendant because of the recording of the deed under which he claimed title to the tract of 55 acres. There is no merit in the contention of the defendant that the plaintiff's action was barred by laches.
The pleadings and evidence in the case demanded a verdict for the plaintiff. It was error for the trial court to deny the motion for new trial on the general grounds. It is unnecessary to deal with grounds of the motion assigning error on excerpts from the charge of the court.
2. In the cross-bill of exceptions the defendant assigned error on the denial of his oral motion to strike the petition. The petition stated a cause of action for equitable relief, and the trial court did not err in this judgment.
The defendant insists that the trial judge should have dismissed the motion for new trial because no written notice had been given to him or his counsel of the intention to present the brief of evidence for approval at a certain time and place. One of counsel for the defendant was present at the time the brief of evidence was presented to the court. When the original motion for new trial was filed, the other attorney for the defendant made the following acknowledgment: "Due and legal service of the within motion and order acknowledged, time, copy, and all other and further notice waived." The trial judge did not err in holding that this constituted a waiver of notice of the presentation of the brief of evidence. There is no abuse of discretion shown in the judgment of the trial court overruling the defendant's objections to the motion for a continuance by the plaintiff as to the motion for new trial.
The portions of the defendant's amendments to his answer which the trial court disallowed presented no issues which would have authorized a verdict for the defendant. The defendant's evidence to which objections were sustained would not have supported a verdict for him, if it had been admitted. These assignments do not show reversible error.
Judgment reversed on the main bill of exceptions; affirmed on the cross-bill. All the Justices concur, except Wyatt, P.J., not participating.