Opinion
25551.
SUBMITTED DECEMBER 8, 1969.
DECIDED FEBRUARY 19, 1970.
Equitable petition. Walker Superior Court. Before Judge Coker.
Wade H. Leonard, for appellant.
Lindsay H. Bennett, Jr., for appellee.
The court erred in granting the motion of the defendant for a summary judgment and in rendering the judgment decreeing the title to the land involved to be in the defendant and enjoining the plaintiff from trespassing upon the property and from vexing the defendant concerning the boundary lines of the property decreed to belong to the defendant. The pleadings were not pierced as to at least two questions which could only be determined by the introduction of evidence and the findings of a jury from the evidence adduced on a trial.
SUBMITTED DECEMBER 8, 1969 — DECIDED FEBRUARY 19, 1970.
J. T. Trammell and his wife, Frances Trammell brought this action against Oscar L. Thomas in which the plaintiffs alleged that they are the lawful owners of, and have title to, a certain tract of land in original Land Lot No. 9 in the 9th District and 4th Section of Walker County, Georgia, as shown by plat of record in Deed Book 8, page 433, office of the Clerk of the Superior Court of Walker County, Georgia, described as follows: "Beginning at the northeast corner of property now or formerly owned by Mary Ruth Leonard, which corner is on the west side of North Center Street and 10 feet east of the west line of Lot 64 and is also about 74 feet north of the south line of Lot 64; thence north along and with the west side of North Center Street, a distance of 36 feet; thence west parallel with the north and south line of Lot 64 1/2 and Lot 64, a distance of 60 feet to the west boundary line of Lot 64 1/2; thence south with the west boundary line a distance of 36 feet to the northwest corner of the Mary Ruth Leonard property; thence east along the north line of the Mary Ruth Leonard property a distance of 60 feet to the point of beginning." The petition further alleged: "Plaintiffs show that immediately after they purchased the said property on the 14th day of October, 1963 the defendant unlawfully moved a picket fence, which was near the south boundary of the above described property and moved it back a distance of 8 feet onto plaintiffs' property and nailed it to the porch of plaintiffs' house and that since that date the defendant has unlawfully kept possession of 8 feet of the south end of the above described tract of land being more particularly described as follows: Beginning at the northeast corner of property now or formerly owned by Mary Ruth Leonard, which corner is on the west side of North Center Street and 10 feet east of the west line of Lot 64 and is also 74 feet north of the south line of Lot 64; thence north along and with the west side of North Center Street, a distance of 8 feet; thence west parallel with the north and south line of Lot 64 1/2 and Lot 64, a distance of 60 feet to the west boundary line of Lot 64 1/2; thence south with the west boundary line a distance of 8 feet to the northwest corner of the Mary Ruth Leonard property; thence east along the north line of the Mary Ruth Leonard property a distance of 60 feet to the point of beginning.
"That in order to locate the beginning point of the description of plaintiffs' property to-wit: `Beginning at the northeast corner of property now or formerly owned by Mary Ruth Leonard' it is necessary to refer to the deeds by which the said Mary Ruth Leonard obtained title to the property constituting the boundary of plaintiffs' property.
"(a) On the 14th day of July 1931, George J. Cheek, by warranty deed, conveyed to Mary Ruth Leonard the following described property: `The County of Walker, in said State of Georgia, described as follows: Being in the Ninth District and Fourth Section of Walker County, Georgia, being parts of Lots Numbers Sixty-Four and Sixty-Four and one half, said parts described as follows: Being all of Lot Number Sixty-four and one half and ten feet front off of Lot No. Sixty-Four fronting on West Gordon Avenue, or Street and running back along North Center Street eighty-two feet (82) and along the East line of Lot Number Sixty five a distance of eighty-two (82) feet, same fronting on West Gordon Street, sixty feet and running back north a distance of eighty-two feet to a line.'
"This warranty deed was recorded May 21, 1932, in the office of the Clerk of the Superior Court, Walker County, Georgia, Deed Book 65, page 218.
"(b) Subsequently George J. Cheek executed to Mary Ruth Leonard a deed of correction specifically referring to the deed dated July 14, 1931, recorded May 21, 1932, in which the property conveyed was described as follows: `Being in the Ninth District and Fourth Section of Walker County, Georgia, being parts of Lots Numbers Sixty-Four and Sixty-Four and one half, said parts described as follows: Being all of Lot Number Sixty-Four and one half, and ten feet front off of Lot No. Sixty-four fronting on West Gordon Avenue or Street, and running back along North Center Street seventy-four (74) feet, and along the East line of Lot No. Sixty-five a distance of seventy four (74) feet, same fronting on West Gordon Street sixty (60) feet and running back north a distance of seventy-four (74) feet to a line, ... This is a deed of correction for deed dated July 14th, 1931, recorded May 21st, 1932.'
"From the above mentioned deed it is obvious that the northern boundaries of the property conveyed by George J. Cheek to Mary Ruth Leonard is [sic] 74 feet north of West Gordon Avenue.
"That notwithstanding the deed of correction referred to in paragraph 3, subparagraph (b), above, the said Mary Ruth Leonard attempted to convey on September 18, 1937, and/or the 19th day of October, 1940, the property described in paragraph 3, subparagraph (a), above, completely disregarding the deed of correction described in paragraph 3, subparagraph (b), above, and attempted to convey property facing on West Gordon Avenue and extending south for a depth of 82 feet, although by virtue of the deed of correction she only owned property running north a depth of 74 feet and said error has been carried forward in defendant's chain of title so that the defendant is now claiming title to and has taken possession of plaintiffs' property as described in detail in paragraph 2 above, although the said Mary Ruth Leonard did not own, and could not convey title to said 8 feet of property.
"The plaintiffs are the lawful owners of all the lands described in paragraph 1 hereof and that the defendant has unlawfully and without plaintiffs' consent taken possession and control of that portion of plaintiffs' property described in paragraph 2 hereof.
"That plaintiffs have, on several occasions, gone to the expense of hiring registered surveyors to mark the line between plaintiffs' and defendant's property but the defendant and his agents have repeatedly pulled up and removed the stakes or pins placed by said surveyors and has threatened the plaintiffs with physical harm if they should continue to have the property surveyed or in any way to exercise control of their right of ownership to the property described in paragraph 2 hereof and will continue to do so unless enjoined and restrained by the court.
"That the defendant and his agents frequently curse, abuse, harass, and humiliate the plaintiffs as a result of their claim to the disputed property and that they will continue to do so unless enjoined and restrained by the court.
"That the defendant has knowledge, either actual or constructive, that their claim to the 8 feet of plaintiffs' property is unlawful and fraudulent by virtue of the fact that the said deed of correction from George J. Cheek to Mary Ruth Leonard is recorded in Book 84, page 158 in the office of the Clerk of Superior Court of Walker County and appears in the defendant's chain of title.
"That by reason that the defendant's fraudulent taking of possession of plaintiffs' property, as aforesaid, the plaintiffs have been damaged in the amount of $5,000 and plaintiffs further state that they are entitled to an additional sum of $10,000 for punitive damages to deter the defendant from his wrongful trespasses against them.
"Wherefore Petitioner prays: (a) That process issue requiring the defendants to appear and answer these complaints as required by law. (b) That plaintiff be awarded a general judgment in the amount of $15,000 against the defendant."
The prayers were for process, for a judgment of $15,000, a decree of title to the land, the cancellation of the defendant's deed to the extent that its description of the property conveyed overlaps the plaintiffs' property; and that the defendant be temporarily and permanently enjoined from trespassing upon plaintiffs' property and other actions violative of plaintiffs' rights. The defendant filed a cross action claiming title to the land sued for and prayed for damages, injunctive relief and decree of title. J. T. Trammell died pending the action and the parties entered into the following stipulation: "It is hereby stipulated and agreed by plaintiff Frances Trammell and defendant Oscar Thomas acting through their respective counsel, that inasmuch as one of the plaintiffs, J. T. Trammell is now deceased and no personal representative has been appointed for him, that any judgment, decree or order of the court rendered in this case, shall be enforceable by or binding upon the estate of said decedent J. T. Trammell. This 9th day of June, 1969." The defendant filed a motion for a summary judgment, supported by various affidavits countered by affidavits of plaintiff and others. The court granted the defendant's motion for a summary judgment and entered the following judgment: "It is therefore Ordered, Adjudged, and Decreed, that the defendant's motion for summary judgment be, and the same hereby is granted, that the plaintiffs have and recover nothing by their suit, and the defendant Oscar Thomas on his counterclaim is decreed to have good title by prescription under color of title to the following described land: All that tract or parcel of land lying in Land Lot 9 in the 9th District and 4th Section of Walker County, Georgia, and being a portion of Lot 64 and 64 and 1/2 in the City of Rossville and being more particularly described as follows: Beginning at a point (being a stake) on the west side of Center Street and being 82 feet north of the north side of West Gordon Avenue at its intersection with Center Street in the City of Rossville and from said beginning point westwardly 60 feet to a stake; thence southwardly approximately 8 feet to a point; thence easterly 60 feet to the west side of Center Street; thence northwardly along and with the west line of Center Street 8 feet to the point of beginning. It is further Ordered, Adjudged and Decreed that plaintiff Frances Trammell be and she is hereby permanently enjoined and restrained from trespassing upon aforesaid property and from vexing defendant concerning said boundary line, any violation of this injunction shall be deemed contempt of court." The appeal is from this judgment.
Pretermitting the question of whether the description of the land being litigated over is a correct, legally sufficient description, the court erred in granting the defendant's motion for a summary judgment for at least two reasons. The evidence of defendant on summary judgment does not pierce the pleadings on the question whether the deed of correction from George J. Cheek to Mary Ruth Leonard, purporting to correct the description in a deed between the parties dated July 14, 1931, which prior deed caused an overlapping of the description of the land in the dispute in deeds conveying the disputed land to the parties. This deficiency in the evidence creates other deficiencies. If there is no overlapping, the question of adverse possession between the parties is that of actual possession for 20 years or 7 years under color of title. If there is an overlapping, assuming the description in the respective deeds is sufficient, the adjacent owners might both be in constructive possession of the same land, and as a consequence, no prescription by adverse possession for 7 years can arise in favor of either party. Code § 85-404. There may be other jury questions of fact which we do not intend to intimate do not exist. The two vital questions are sufficient for the purposes of this decision.
Judgment reversed. All the Justices concur.