Opinion
15435.
APRIL 3, 1946.
REHEARING DENIED MAY 10, 1946.
Complaint for land, etc. Before Judge Porter. Walker Superior Court. December 13, 1945.
Shaw Shaw and S. J. Hale, for plaintiff in error.
James Maddox and Rosser Rosser, contra.
Ordinarily actual possession under a recorded deed of a portion of several tracts or lots of land which are all contiguous and lie in one body will extend by construction so as to include the entire premises conveyed.
( a) Where such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained; and ordinarily it will not extend to the boundaries of this parcel unless actual possession has been maintained of a portion of the land in dispute.
( b) Where actual possession is maintained of a portion of one lot for several years under an unrecorded deed conveying contiguous lots, there can be no tacking of possession as to the contiguous lots to the previous constructive possession of the contiguous lots held under a recorded deed.
No. 15435. APRIL 3, 1946. REHEARING DENIED MAY 10, 1946.
A. E. Gregory filed a petition against Wallace Campbell, seeking an injunction and the recovery of lot of land No. 13 in the 12th district and 4th section of Walker County. Gregory alleged that he is the owner of land lots Nos. 145 and 146 in the 18th district and 4th section of Walker County, and of lot No. 13 in the 12th district and 4th section of Walker County. He claimed title by virtue of a chain of deeds set out in his petition, and also title by prescription; alleging that his "predecessors in title were in the open, notorious, adverse, and peaceable possession of said land under color of title for more than seven years, claiming it as their own, which said possession was exhibited by the actual possession thereof shown by the continuous cultivation thereof, the occupancy of a house located thereon, and the continual cutting of timber and wood thereon." He alleged that on or about April 10, 1944, the defendant entered upon lot 13, began the erection of a house thereon, and claimed title to this lot.
The defendant answered, denying the plaintiff's ownership of lot No. 146 in the 18th district and 4th section of Walker County, and lot No. 13 in the 12th district and 4th section of Walker County, neither admitted nor denied the execution of the deeds relied upon by the plaintiff, but alleged that the first deed in the plaintiff's chain of title was a fraudulent conveyance. The defendant alleged that he was the owner of lots 146 and 13 by virtue of a deed from the heirs at law of J. M. Forrester, in whose estate title to the lands had been decreed by a decree entered in Walker Superior Court on February 16, 1926, in litigation between the administrators of Forrester's estate and one O. L. Coulter, under whom R. C. Davant, one of the plaintiff's predecessors in title, claimed title to the land in dispute.
On the trial the plaintiff introduced in evidence: a certified copy of a deed from R. C. Davant to Lucille Hines, for a recited consideration of $10, dated August 6, 1929, recorded May 12, 1930, conveying "all that tract or parcel of land lying and being in the 12th district and 4th section of Walker County, known by lots Nos. 12, 13, 17, each containing 160 acres, more or less, and in the 18th district of the 4th section of Walker County, known by lots Nos. 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, and 154, each containing 160 acres, more or less; a sheriff's deed (together with the execution and entry showing levy on the property described as the property of Lucille Hines) to James E. Rosser, dated June 2, 1936, and recorded May 1, 1944, conveying lots 12, 13, 15, 16, and 17 in the 12th district and 4th section of Walker County, and containing 160 acres each; also lots 144, 145, 146, 147, 148, 149, 150, 151, 152, 153, and 154 in the 18th district and 4th section, these lands known as Oscar Coulter lands; a quitclaim deed from James E. Rosser, G. W. Agnew, Dolph Johnson, and M. L. Agnew, to Dolph Johnson, dated July 13, 1943, and recorded July 27, 1943, and conveying the lands described in the first deed; a warranty deed from Dolph Johnson to the plaintiff, A. E. Gregory, dated January 6, 1944, and recorded the same date, and conveying "all that tract or parcel of land lying and being in the 12th district and 4th section of Walker County, and being all of lot No. 13 in said district and section, and containing 160 acres, more or less; also lots of land Nos. 145 and 146 in the 18th district and 4th section of Walker County, Georgia, each lot containing 160 acres, more or less."
The undisputed evidence showed that all the lots mentioned in the various deeds adjoined and constituted one body of land; that R. C. Davant and Lucille Hines, grantor and grantee in the first deed, were daughters of O. L. Coulter; that O. L. Coulter died in 1929 or 1930; that for several years previous to his death he lived in a house located on lot No. 152, and surrounding the house there were 16.7 acres of land in cultivation on lots 152 and 149; that all the other lots mentioned in the deeds were woodland; that following the death of O. L. Coulter, and after the execution of the first deed mentioned, a tenant of Lucille Hines was in actual possession of the 16.7 acres of cultivated land; that after the execution of the sheriff's deed above referred to, the house continued to be occupied and the 16.7 acres cultivated by an agent of the grantee in the sheriff's deed; that this agent, Dolph Johnson, purchased the land and thereafter remained in actual possession of the 16.7 acres of cultivated land until the execution of the deed to the plaintiff on January 6, 1944, to lots 13, 145, and 146. The evidence further showed that no actual possession had ever been maintained on lot 13, the land in dispute, but that timber and crossties had occasionally been cut therefrom by the plaintiff's predecessors in title. Lot 13 is about a mile and a half distant from the cultivated land, and is not contiguous to lots 152 and 149, there being two lots lying between the lot in dispute and the lots on which the cultivated land is located.
The defendant introduced in evidence a decree of the Superior Court of Walker County, dated February 16, 1926, and recorded on the minutes of the court, in litigation between the administrators of the estate of J. M. Forrester and O. L. Coulter, which decree, in part, reads: "It is considered, ordered, adjudged, and decreed by the court, by consent of parties in open court, as follows: that plaintiff [the administrators of the Forrester estate] do have and recover in said causes from the defendant the following lots of land, to wit: Lot No. 13, 12th district and 4th section of Walker County, Georgia, lots Nos. 146 and 147 and the north half of lot No. 148 in the 18th district and 4th section of Walker County, Georgia. That defendant O. L. Coulter do have and recover from the plaintiff H. G. Forrester, administrator of J. M. Forrester, deceased, the following lots of land, to wit: Number 14 in the 12th district and 4th section of Walker County, Georgia, and lots Nos. 149, 150, 151, 153, and 154 in the 18th district and 4th section, all in said Walker County, Georgia." The defendant also introduced in evidence a deed dated in September, 1943, from all the heirs at law of J. M. Forrester to the defendant, conveying, for a recited consideration, "all of original lot of land No. 13 lying and being in the 12th district and 4th section of Walker County, Georgia, and containing 160 acres, more or less; also all the original lot of land No. 146 lying and being in the 18th district and 4th section of Walker County, Georgia; also the north half of lot of land No. 148 lying and being in the 18th district and 4th section of Walker County, Georgia, containing 400 acres, more or less." This deed was recorded on November 3, 1943.
A verdict was directed for the plaintiff. The defendant filed a motion for a new trial on the general grounds, and an additional ground that the court erred in directing a verdict, inasmuch as under the evidence there were issues of fact which should have been submitted to the jury. The court overruled the motion and the defendant excepted.
Without giving consideration to other questions which might be involved under the facts of this case, we deal only with the contentions urged in this court. The burden of the argument of counsel for both parties is addressed to one question: whether the plaintiff in the court below proved prescriptive title to the land in dispute by showing actual possession of a portion of a tract of land and constructive possession of the balance for seven years under color of title.
Counsel for the plaintiff in error, though conceding that the various lots conveyed by the successive deeds to the plaintiff's predecessors in title are all contiguous and lie in one body, urges that, since the deeds do not describe the property by language indicating an intention to convey it as a single tract, actual possession of a portion of one lot will not by construction extend to the entire premises conveyed.
"Constructive possession of lands exists where one having paper title to a tract of land is in actual possession of only a part thereof. In such a case, the law construes the possession to extend to the boundary of the tract." Code, § 85-404. "Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced therein." Section 85-405. This latter section first appeared in the Code of 1895, and has evoked some question as to when, and under what circumstances, actual possession of a portion of a tract of land will extend by construction to include the balance of the premises conveyed. For an enlightening discussion of the apparent conflict of authorities, see Powell on Actions for Land, §§ 310, 311, and notes. Foregoing a lengthy discussion here of the various decisions on the question of constructive possession, we believe the following to be the correct rules, based upon precedents and the weight of authority: Ordinarily actual possession, under a recorded deed, of a portion of several specified tracts or lots of land which are all contiguous and lie in one body (though not expressly designated as one parcel or tract by the terms of the deed) will extend by construction so as to include the entire premises conveyed. Janes v. Patterson, 62 Ga. 527 (4); Anderson v. Dodd, 65 Ga. 402; Johnson v. Simerly, 90 Ga. 612 ( 16 S.E. 951); Baxter v. Mattox, 106 Ga. 344 ( 32 S.E. 94); Powell on Actions for Land, § 311, and notes. Where, however, such possession is under an unrecorded deed, constructive possession will not extend beyond the tract or lot on which actual possession is maintained. Grimes v. Ragland, 28 Ga. 123; Tritt v. Roberts, 64 Ga. 156 (2); Griffin v. Lee, 90 Ga. 224 ( 15 S.E. 810); Carstarphen v. Holt, 96 Ga. 703 (3) ( 23 S.E. 904). And, in the case of an unrecorded deed, possession will not ordinarily extend by construction beyond the possessio pedis, even as to the lot or parcel on which actual possession is maintained of a portion, unless actual possession has been maintained of a portion of the land in dispute. This is true for the reason that otherwise the element of notoriety, which is necessary in prescriptive titles based on constructive possession, is lacking. "In cases involving prescription and in other cases respecting adverse possession, the element of notoriety as to an asserted constructive possession is adequately shown whenever the party asserting the adverse constructive possession shows color of title covering the land in dispute and produces proof, either (1) that his actual adverse possession has been maintained on a part of the land in dispute; or (2) that, while his actual possession may not have been maintained on a part of the land in dispute, yet it has been maintained on a portion of the tract included in his color of title, and that the conveyance which constitutes the color of title was duly recorded, or was otherwise brought to the knowledge (actual or constructive) of the person against whose title the adverse possession is asserted. On the other hand, if the possessor has no actual possession of any part of the tract claimed by the person against whom the adverse constructive possession is asserted, and his deed (though it includes the land in dispute) is not recorded and notice of the boundaries has not otherwise been given, the possessor cannot assert adverse constructive possession to the tract in dispute." Powell on Actions for Land, p. 415, § 310.
Applying these rules, did the plaintiff prove prescriptive title to the lot of land in dispute?
The evidence shows that after the death of O. L. Coulter, one of his daughters conveyed to another daughter a number of contiguous lots, title to a portion of which had several years previously been decreed in Coulter, and title to the remainder of which had been decreed in another. The grantee in the deed continued in possession of a small tract of land which was formerly occupied by Coulter, and to which he held title, but no actual adverse possession was asserted as to any of the other lots. This possession was under a recorded deed, but continued for a period less than seven years, when the lands were purchased and the grantee went into possession, and remained in possession for several years, under an unrecorded sheriff's deed, the nature of the occupancy being the same as that of the purchaser's predecessors in title.
The peculiar facts of this case might present an exception to the rule first announced in this opinion; but, conceding that the possession of the grantee in the first deed was such that, since the deed was recorded, prescription began to run as to all the land embraced in the deed, still we do not think that the plaintiff has shown a good prescriptive title, for the reason that under the facts of this case there can be no tacking of possession as to the lot of land in dispute.
The Code, § 85-416, provides: "An inchoate prescriptive title may be transferred by a possessor to a successor, so that the successive possessions may be tacked to make out the prescription." Although, under this section, it is unnecessary that adverse possession be maintained for the statutory period by the same person, since continuity may be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between them, still it is necessary that such several possessions be of such a character as to be the foundation of prescriptive title. Where, as here, one enters into a portion of a lot under an unrecorded deed, he can never under such possession prescribe as to contiguous lots until the deed is recorded; and where the deed is not recorded, we do not think that the incomplete prescriptive title of his predecessor can inure to his benefit in so far as constructive possession of the contiguous lots is concerned.
The facts of this case are distinguishable from those in Roberson v. Downing Company, 120 Ga. 833 ( 48 S.E. 429, 102 Am. St. R. 128, 1 Ann. Cas. 757), in which the court ruled: "Where one enters into possession of a part of a tract of land under color of title which is duly recorded, and thereafter conveys the land to subsequent grantees, who thereupon enter, but who fail to record their deed, such subsequent grantees may tack their possession to that under the duly recorded deed, and acquire a good prescriptive title at the expiration of seven years from the entry under the registered instrument." In the Roberson case the deeds in question conveyed one lot of land, which was the land in dispute; and the possession was such that the persons in possession could prescribe as to the whole tract conveyed under recorded or unrecorded deeds; and, after announcing the rule quoted, the court specifically held in another division of the opinion that there could be constructive possession under the unrecorded deed. The ruling was undoubtedly sound, as applied to the facts of that case; but it will not be extended so as to cover a case such as the present, where the possession under the unrecorded deed was such that it could not extend by construction to the lot of land in dispute. Clearly, as to contiguous lots on which no actual possession is maintained, successive deeds must be recorded in order to afford a basis for prescriptive title by constructive possession.
The plaintiff having failed to prove a prescriptive title, the court erred in directing a verdict.
Judgment reversed. All the Justices concur.