Opinion
19130.
SUBMITTED OCTOBER 10, 1955.
DECIDED NOVEMBER 14, 1955.
Complaint for land. Before Judge Houston. Gwinnett Superior Court. July 27, 1955.
Quillian, Quillian Thomas, for plaintiffs in error.
Allison Pittard, R. F. Duncan, contra.
1. It was not error to allow the amendment to the petition.
2. The petition and the evidence were insufficient to identify the lands sought to be recovered.
SUBMITTED OCTOBER 10, 1955 — DECIDED NOVEMBER 14, 1955.
Mr. and Mrs. J. J. Wilson filed a petition against Edgar Phillips and Wesley Sharpton to recover a tract of land described as follows: "All that tract or parcel of land lying and being in Harbins Militia District in the 5th land district of Gwinnett County, Georgia, containing fifty (50) acres, more or less, bounded on the north by lands of W. C. Brooks and J. P. Mahaffey; on the east by lands of J. P. Mahaffey and Wesley Sharpton; on the south by lands of Wesley Sharpton and on the west by the J. J. Wilson 87 1/2 acre tract of land. Said land being known as the John Hall tract of land."
It was alleged: The plaintiffs claim title as an heir at law of N. G. Pharr, deceased, and under deeds from the heirs at law of the deceased. The defendants purport to claim under a deed from the administrators of N. G. Pharr, deceased. The defendant Edgar Phillips purchased 130 acres of land, more or less, of the N. G. Pharr estate, known as the Jones Ewing home place, but the deed under which the defendants hold did not attempt to convey the land described in the petition. On September 18, 1950, Phillips conveyed to Wesley Sharpton the lands which he had purchased from the administrator of N. G. Pharr, deceased. The defendants have been in possession of the land since March, 1946, have cut timber therefrom, and are threatening to cut the remaining saw timber on the property. Unless the defendants are restrained, they will continue to cut and remove timber from the land to the injury and damage of the plaintiffs.
Attached to the petition is an abstract of title. In item 1 it is stated that Mrs. Wilson holds a 1/4 interest in the property as heir at law of N. G. Pharr, deceased. Item 2 shows a deed to J. J. Wilson from O. N. Pharr, which recites that it is for an undivided 1/4 interest in the land. Item 3 shows a quitclaim deed from O. J. Pharr to Mrs. J. J. Wilson, O. N. Pharr, and Mr. and Mrs. J. R. Sams, conveying his interest in the John Hall tract of land. Item 4 shows a quitclaim deed from J. R. Sams to J. J. Wilson, purporting to convey a 1/2 undivided interest.
The prayers of the petition were for process; that the defendants be temporarily and permanently enjoined from cutting and removing timber; that the title and right of possession of said land be decreed in the plaintiffs; and that the defendants be required to account for mesne profits.
The defendants filed an answer, admitting that they claimed under a deed from the administrators of N. G. Pharr, deceased. They admitted possession, and alleged ownership of all the land conveyed to Edgar Phillips by the administrators of N. G. Pharr, deceased.
The plaintiffs, by amendment, alleged that the administrators of the estate of the deceased were discharged on the first Monday in May, 1950, and there was no administration on the estate at the time the action was filed. It was also alleged: The deceased left his widow, Mrs. N. G. Pharr, five living children, and representatives of a deceased child. Mrs. Wilson inherited a 2/15 interest from her father, and a 1/30 interest from her mother; she acquired 1/4 of O. J. Pharr's interest of 2/15, which gave her a 1/30 interest. J. J. Wilson acquired O. N. Pharr's 2/15 interest by deed, and Dr. J. R. Sams conveyed to J. J. Wilson a 1/4 of O. J. Pharr's 2/15 interest, or a 1/30 interest.
The defendants filed exceptions pendente lite to the overruling of their objections to the allowance of this amendment. The jury returned a general verdict for the plaintiffs, whereupon a judgment was entered that the plaintiffs recover a 11/30 undivided interest in the lands described in the petition.
The defendants filed a motion for new trial, which was denied. They assign error on their exceptions pendente lite and on the denial of their motion for new trial as amended.
1. The petition did not refer expressly to the abstract attached, nor was it referred to as an exhibit. "The abstract of title is not a part of the petition in a statutory action for land, unless voluntarily made so by the pleader." Foster v. Rowland, 194 Ga. 845 ( 22 S.E.2d 777). The abstract may be amended. Lee v. Houston, 120 Ga. 529 ( 48 S.E. 129); Dugas v. Hammond, 130 Ga. 87, 94 ( 60 S.E. 268).
The fact that a plaintiff may sue for the entire fee would not prevent a recovery for an undivided fractional interest. Donalson v. Yeates, 173 Ga. 30, 32 (12) ( 159 S.E. 856). It was not error to allow the amendment reducing the amount of interest claimed by the plaintiffs.
2. The two grounds of the amended motion for a new trial are an elaboration of the general grounds. The plaintiffs contend that the defendants did not acquire title to the lands described in their petition under the deed from the administrators. The defendants rely upon the administrators' deed and insist that the lands for which the plaintiffs are suing are included in that deed.
In support of their contentions, the plaintiffs relied largely upon the testimony of the two administrators of N. G. Pharr, deceased, O. J. Pharr and Otis N. Pharr. The administrators referred in their testimony to the lands sold by them to the defendant Phillips as the Mary F. Ewing dower lands. The advertisement described the property sold to the defendant Phillips as 135 acres, more or less, known as the Jones Ewing home place. It does not appear that the respective tracts of land sold by the administrators were surveyed at any time prior to the institution of the present case.
The testimony of the administrators was vague, indefinite, and uncertain, and wholly insufficient to fix any lines with reference to the property claimed by the plaintiffs. As indicative of the type of testimony relied upon for a recovery for the plaintiffs, O. J. Pharr testified in part on cross-examination: "I didn't know where the line was between the Wilson 87 1/2 acres, Mr. Jule Wilson's 87 1/2 acres up there, there's no corners up there. I think that belongs to him, I think that he bought it. I don't know where the corners are between the Hall tract and the Wilson tract. I don't know how much is in the Hall tract, whether it's 50 or 38 acres, I wouldn't say, no sir, I don't know exactly how much there are."
"In an action for recovery of land the description of the property must be sufficiently definite to enable the sheriff, in the event the plaintiff recovers, to execute a writ of possession from the description given." Hamil v. Gormley, 188 Ga. 585 ( 4 S.E.2d 471).
There was no testimony sufficient to identify the lands as the John Hall tract of land by location, boundary, or otherwise. The lines of separation on the south and east between the lands admittedly sold by the administrators to Edgar Phillips and the land claimed by the plaintiffs are not established by any testimony in the case. The petition does not allege, and the testimony fails to show, any measurements of the boundaries, or a starting point on any ascertainable boundary to determine the location of any tract of land; and the land claimed by the plaintiffs being bounded on two sides, in part, by property of the defendant Sharpton, it falls short of the standard required by law. Harwell v. Foster, 97 Ga. 264 ( 22 S.E. 994); Williams v. Perry, 136 Ga. 453 ( 71 S.E. 886); Hunter v. Bowen, 137 Ga. 258 ( 73 S.E. 380); Stringer v. Mitchell, 141 Ga. 403 ( 81 S.E. 194); Darley v. Starr, 150 Ga. 88 ( 102 S.E. 819); Hamil v. Gormley, supra; Oglesby v. Volunteer State Life Ins. Co., 195 Ga. 65 ( 23 S.E.2d 404); Callaway v. Armour, 208 Ga. 136 ( 65 S.E.2d 585).
Judgment reversed. All the Justices concur.