Opinion
17158.
JULY 12, 1950.
Cancellation, etc. Before Judge Paschall. Murray Superior Court. April 3, 1950.
Charles A. Pannell and William Butt, for plaintiff in error.
Mitchell, Mitchell, Bolling Mitchell, contra.
1. The petition to cancel a year's support and a deed based thereon as a cloud upon title, showing that the parties claimed under a common grantor, was not subject to demurrer as contended because the petition and the abstract attached thereto failed to show title in the petitioner based on a grant from the State, or by prescription or originating in a tax sale.
2. The evidence showing that the petitioner was in lawful possession under a continuous chain of title back to the common grantor, and there being no evidence to connect the defendant's chain of title other than that the common grantor gave the defendant's predecessor permission to look after the property, there were no issues of fact to be submitted to the jury, and a judgment in favor of the petitioner was demanded.
No. 17158. JULY 12, 1950.
Paul Adcock filed in Murray Superior Court, against L. N. Foster, a petition which as amended alleged substantially the following: The petitioner is the lawful owner of, has title to, and has been and is now in actual possession of a described lot of land containing one acre. There appears of record in the office of the ordinary a year's support in favor of Mrs. Lou C. Jones from the estate of Alvin Jones. There is also recorded in the office of the clerk of the superior court a deed from Mrs. Lou Jones to the defendant covering the lot in dispute. The year's support and the deed are void for the reason that the property described therein never at any time belonged to Alvin Jones, and therefore the year's support in which the property is attempted to be set aside to the window of Alvin Jones does not convey any interest in the property; and the deed is void because it is based upon the alleged year's support, and therefore the year's support and deed are void and convey no title whatsoever in the property to the defendant. The year's support and deed create a cloud upon the petitioner's title, and he can not effectually maintain or protect his rights by any course or proceedings other than the filing of this petition. By reason of the year's support and deed upon the records of the county, the petitioner's credit is impaired and the loan value of his land destroyed, he being unable to borrow money thereon as long as the purported conveyances are of record. The defendant has offered to sell the property, and will do so unless enjoined, thereby further casting a cloud upon the petitioner's title, and subject him to trouble and expense in defending his title, and will result in a multiplicity of suits. The prayers, besides for process, service, and rule nisi, were that the year's support and deed be canceled as a cloud upon the petitioner's title; and that the defendant be enjoined from selling, encumbering, or otherwise disposing of the property. Copies of the petitioner's abstract of title, the year's support proceeding, and the defendant's deed, were attached to and made a part of the petition.
The defendant filed a demurrer, which was renewed to the petition as amended, and an answer. The demurrer was overruled, to which ruling the defendant excepted pendente lite.
On the trial the petitioner introduced in evidence the deeds in his chain of title going back to 1909, and testified that he had been in possession since he bought the property on May 4, 1948. He also introduced a portion of the defendant's answer which averred: "Defendant further shows, by way of affirmative defense, that by the direction and explicit permission of Ed Whiteman, a predecessor in title of the plaintiff, Alvin Jones went into possession of the real estate" described in the petition.
The defendant testified in part: He bought the property from Mrs. Jones in 1945, and had never done anything to the lot since he purchased it. The tax books show that tax receipts were made to Jones and Whiteman for some 12 to 15 years. The defendant paid taxes from 1945 through 1947. Mr. Jones kept the lot cleaned off. A miniature golf course was on the property along in the thirties, and later a tent was erected for a revival. Mrs. L. N. Foster testified in part for the defendant: In 1926 Mr. Whiteman turned the property over to Mr. Jones to look after it. It was a part of a tract that Mr. Whiteman owned. Copies of the year's support proceedings and the defendant's deed were also introduced in evidence.
The court, after hearing evidence, directed a verdict in favor of the petitioner. The defendant made a motion for new trial, which was amended by the addition of one special ground complaining of the direction of the verdict, and he excepted to the overruling of that motion. In the bill of exceptions the defendant also assigned error on his exceptions pendente lite.
1. The defendant demurred on the grounds, that the petition as amended does not set forth any cause of action against him in either law or equity; that the allegation, petitioner "is in possession of the following described tract of land," does not state (a) that he is in actual possession of the property, or (b) the type or character of possession that he is relying upon, in that he does not state any actual possession of the realty, as provided by the statutes in respect to the requirements as to lawful possession of property; and (c) fails to set forth, with any degree of particularity the character and kind of possession the petitioner is relying upon, in that he does not state he has ever made any improvements on the property in either erecting any fences or performing any act which would constitute actual possession of the property; and (d) the averment is too loose, vague, general, and indefinite to show the type of possession the petitioner is relying upon. Counsel for the defendant insists that the general demurrer should have been sustained, for the reason that the petition and the abstract attached thereto do not show any valid, legal title in the petitioner based upon a grant from the State or by prescription or originating in a tax sale where the property is sold as belonging to the true owner.
There is no merit in the above insistence. The petition as amended alleged that the petitioner is the lawful owner of, has title to, and has been and is now in actual possession of the realty in dispute. An abstract of title, attached to and made a part of the petition, shows a continuous, uninterrupted chain of title from Mrs. Janie Keith in 1909, including a conveyance of the realty from Ed Whiteman to W. M. Sims, and then from Sims to the petitioner. The year's support, a copy of which was also attached to and made a part of the petition, and which is in the defendant's chain of title, sets aside the property in dispute known as "Jones-Whiteman property." Therefore, the petition on its face shows that both the petitioner and the defendant recognize and claim under Whiteman as their common grantor.
In a suit to remove a cloud upon title, where both parties claim under a common grantor, it is unnecessary to show title back of such common grantor. Mentone Hotel Realty Co. v. Taylor, 161 Ga. 237 (2) ( 130 S.E. 527).
Nor was the petition as amended subject to special demurrer on the ground that it failed to allege actual possession and failed to designate the type or character of possession.
2. The undisputed evidence shows that petitioner was in possession of the property, on the date the suit was filed, under a continuous chain of title back to the common grantor, Whiteman, and that the defendant claimed under a warranty deed from Mrs. Jones, who in turn claimed under a year's support from her husband's estate. The issue was thus narrowed down to the question of which party had the best title from the common grantor, Whiteman. There was no evidence to connect Mr. Jones, the defendant's predecessor, to the common grantor, other than that he gave Mr. Jones permission to look after the property.
The defendant cannot prevail under the theory of adverse possession, for the reason that the evidence shows that Mr. Jones' possession was permissive. Code, § 85-402.
It follows that under the evidence there were no issues of fact to be submitted to the jury, and therefore a judgment in favor of the petitioner was demanded.
Judgment affirmed. All the Justices concur.