Opinion
15357, 15362.
MARCH 4, 1946.
Injunction. Before Judge Worrill. Quitman Superior Court. October 6, 1945.
Lowrey Stone, for plaintiff in error. A. H. Gray, contra.
1. The deed to the plaintiff, purporting to convey lots 262 and 283 and "60 acres of west end of lot No. 284, and 20 acres of lot No. 261, all in 8th district of Quitman County, Georgia, known as the Robinson place," contained a sufficient description of the 20 acres, in view of the concluding phrase, "known as the Robinson place," since the identity of the land thus described could be shown by other competent evidence. McAfee v. Newberry, 144 Ga. 473 (1) ( 87 S.E. 392); Moore v. McAfee, 151 Ga. 270 (5) ( 106 S.E. 274); Nasworthy v. James, 152 Ga. 368 ( 110 S.E. 7); Dorsey v. Dorsey, 189 Ga. 662 (2) ( 7 S.E.2d 273).
2. "Where the description is uncertain, reference may be made to prior deeds conveying the same land; and an entire tract of land may be described by a general name by which it is known." McAfee v. Arline, 83 Ga. 645 (a) ( 10 S.E. 441); Stewart v. Latimer, 197 Ga. 735 (2), 743 ( 30 S.E.2d 633).
3. Although the description in the deed to the plaintiff's grantor did not state that the land was known as the Robinson place, it did describe the part of lot 261 as being all of that lot lying south of Tobenannee Creek, and the next previous deed in the plaintiff's chain definitely described it in like manner, and further described all of the land conveyed as "embracing all that parcel of land known as the Robinson place and formerly belonging to J. T. Robinson, deceased."
( a) It thus appears from such previous deed that the Robinson place included all of lot of land 261 south of the named creek, and there being no evidence to the contrary, the deed to the plaintiff, which also described the entire tract as being known as the Robinson place, must be treated as a conveyance of all of lot 261 south of the creek (embracing the five-acre tract in controversy), notwithstanding it did not in express terms so state.
( b) Under the preceding rulings, the evidence demanded a finding that the Robinson place included all that portion of land in lot 261 lying south of Tobenannee Creek.
4. Where the other elements of prescription are present, adverse possession of land under written evidence of title for seven years will give a good title by prescription. Code, § 85-407. "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." Section 85-404. "Possession under a duly recorded deed will be construed to extend to all the contiguous property embraced therein." Section 85-405.
5. There is no contention that the plaintiff had not acquired title by prescription under color of title of the tract of land described as the Robinson place, whatever that might include; the only contention as to this phase being that the evidence was not sufficient to show that the Robinson place included the land in dispute. Under the preceding rulings, this contention is without merit. See, in this connection, Furgerson v. Bagley, 95 Ga. 516 ( 20 S.E. 241); Baxter Co. v. Wetherington, 128 Ga. 801 ( 58 S.E. 467).
6. While the defendant introduced certain deeds, including a deed to himself which he contended embraced the land in controversy, each of these deeds was executed less than seven years before the instant suit was filed, and for this reason he could not claim prescriptive title thereunder; nor did he otherwise show any title to the tract in dispute. The verdict for the plaintiff was therefore demanded as a matter of law, and this being true, it is unnecessary to pass upon the special grounds of the motion for a new trial, assigning error upon the judge's charge, since the errors, if any, were harmless; the assignments of error on the admission of evidence having been expressly abandoned. Nor is it necessary to deal with other questions raised. McGill v. Dowman, 195 Ga. 357 (3) ( 24 S.E.2d 195).
Judgment affirmed on the main bill of exceptions; cross-bill dismissed. All the Justices concur.
Nos. 15357, 15362. MARCH 4, 1946.
In March, 1944, A. A. Hasty filed a suit against R. R. Knighton, seeking an injunction and damages for the alleged cutting of timber on those parts of lots 284 and 261 lying south of Tobenannee Creek, which creek runs entirely across the southern part of lot 261; the lands being in the 8th district of Quitman County, Georgia. The plaintiff asserted title by prescription under color of title, and by more than seven-years' acquiescence in Tobenannee Creek as a dividing line. The defendant filed an answer, denying generally the plaintiff's allegations. A jury found in favor of the plaintiff. The defendant filed a motion for new trial, which, after amendment, was overruled.
Upon the trial, it appeared that only a small tract consisting of about five acres in the southeast corner of lot 261 and lying south of Tobenannee Creek was in dispute between the parties; it being the contention of the plaintiff that he owned all of that part of the lot lying south of the creek (together with other lands), while the defendant claimed that he owned a sixty-acre tract on the east side of the lot, extending entirely across it from north to south, and thus embracing the five-acre tract in controversy. According to some of the evidence, this tract contained more than five acres, while other evidence estimated that it contained less; but for convenience it will be hereafter referred to as the five-acre tract.
The plaintiff introduced in evidence a chain of five deeds, but only three of these deeds need be stated. The contents of these, so far as here material, were as follows:
(1) T. W. Reeves and J. H. Reeves to C. S. Madison, dated January 29, 1886, recorded January 19, 1887, conveying lots 262 and 283, "and all of lots numbers 284 and 261 lying south of Tobenannee Creek, being and embracing all that parcel of land known as the Robinson place formerly belonging to J. T. Robinson deceased."
(2) C. S. Madison to L. C. Wilkerson, dated February 6, 1892, recorded February 8, 1892, conveying lots 262 and 283, "and all of lot 261 and all of lot 284 lying south of Tobenannee Creek, aggregating 500 acres, more or less."
(3) L. C. Wilkerson to A. A. Hasty, dated October 28, 1908, recorded October 30, 1908, conveying lots 262 and 283, and "60 acres of west end of lot No. 284, and 20 acres of lot No. 261, all in 8th district of Quitman County, Georgia, known as the Robinson place."
The plaintiff testified: "I own real estate in this county which I bought from L. C. Wilkerson. The Cuthbert road runs through it, and Tobenannee Creek runs on the north side of it. The creek is recognized as the line and was when I bought it. L. C. Wilkerson lived in Quitman County when I bought the place from him and had been in possession of the place 16 years. The place consists of lots numbers 262 and 283 and parts of lots 261 and 284. . . Tobenannee Creek is the northern boundary of the land I bought from Mr. Wilkerson. . . When I went into possession of that piece of land, it had a name, it was known as the Robinson place. . . I went into possession of that Robinson place in December of the same year I bought it from him. I have remained in possession of the tract of land known as the Robinson place ever since. Some part of the Robinson place has been in cultivation most of the time since I had it."
There was no evidence to dispute any of the foregoing testimony of the plaintiff. He further testified without dispute that he had sold timber off the Robinson place several times, but the evidence was in conflict with respect to sales of timber from the particular five-acre tract, except as to one sale made about 1918, and another about 1930; nor was there other evidence as to actual possession of this tract.
The plaintiff also undertook to show by evidence of himself and other witnesses that Tobenannee Creek had been established as a dividing line by acquiescence. Neither this nor any of the remaining evidence for the plaintiff need be stated, except that it appeared that one Albert Hill was in possession of the land lying on the north side of Tobenannee Creek opposite the tract in controversy at the time the plaintiff purchased the Robinson place, and for many years thereafter, but that Hill was never in possession of any land south of the creek, and there was some evidence to show that he "recognized" the creek as the dividing line.
It appeared from the defendant's evidence that he claimed a tract of sixty acres "off the east part of lot of land number 261" as a successor in title to Albert Hill; contending, as stated above, that this sixty-acre tract included the five-acre tract in question. He did not, however, introduce any conveyance from Hill, his only effort to connect his claim with Hill being the introduction of a deed from one W. A. Cotton, a nephew of Hill, purporting to convey the sixty-acre tract, with other lands, to Loren Gary, who in turn conveyed the same lands to the defendant. The two deeds just mentioned were as follows:
(1) Certified copy of deed from W. A. Cotton to Loren Gary, dated July 9, 1937, conveying, with other land, "60 acres off the east part of lot of land 261" in the 8th land district of Quitman County.
(2) Deed from Loren Gary to R. R. Knighton, dated November 15, 1941, conveying the same lands by the same description.
The defendant also introduced a timber lease from W. A. Cotton to Burgin Lumber Company, dated December 31, 1935, conveying timber on described lands, including "60 acres off the east part of lot of land No. 261," located in the 8th land district of Quitman County. In the brief of evidence, following a description of this lease, is the following note: "Under the direction of the court this lease was introduced for the purpose of showing that W. A. Cotton, a predecessor in title of defendant, did, at the time of the execution of this lease, claim timber in lot No. 261 south of Tobenannee Creek, but for no other purpose."
The defendant testified: "I bought the Hill place from Dr. Gary in 1940 or 1941, and have since attempted to cut some timber in the [southeast] corner of lot 261 sorter in the south corner going toward the east, south of Tobenannee Creek. . . I had put up a fence around the land marked on the map in solid blue [the land in dispute] before I cut the timber, and I did not cut any timber except on the area thus fenced in. . . At the time I cut this timber I claimed it as mine and I claim the land represented there in blue as my land. . . The only claim I have for the land on which I was cutting the timber is my deed from Dr. Gary, in which he conveyed to me, among other lands, 60 acres off the east part of lot of land number 261." Other witnesses testified as to a survey made in 1939; and a map, showing the location of the small tract in controversy as being in the southeast corner of lot 261 and south of Tobenannee Creek, was introduced. There was no other evidence tending to show title in the defendant.
The special grounds of the defendant's motion for a new trial, except those expressly abandoned in this court, assigned error on several excerpts from the charge of the court, and upon the alleged failure of the judge to give sufficient instructions with respect to the defendant's contentions. The grounds abandoned complained of rulings admitting evidence over objections of the defendant.
Counsel for the plaintiff objected to the introduction of the deed from Loren Gary to the defendant, upon the ground that the description therein, to wit, "Sixty (60) acres off the east part of lot of land number two hundred sixty-one (261) in the 8th district of Quitman County, Georgia," was too vague and indefinite to identify any part of the lot, for the reason that no starting point or other means of identification is stated from which the particular boundaries of such sixty acres may be ascertained. The judge overruled this objection, and the defendant excepted pendente lite.
By a main bill of exceptions, the defendant assigned error on the judgment overruling his motion for a new trial as amended, and by a cross-bill of exceptions the plaintiff complained of the overruling of his exceptions pendente lite, and of the ruling therein set out.