54 S.E.2d 407 | Ga. | 1949
The petition set forth no cause of action, and the trial judge did not err in sustaining general demurrers thereto.
The petition further alleged that, after the petitioner purchased the lands, "he entered into actual possession of the same and into actual possession of the lands hereinafter referred to, said possession being evidenced by a pasture fence built thereon and which was occupied by cattle belonging to petitioner and by actual cultivation"; that after the purchase, the petitioner immediately had his deed recorded; that thereafter, some time in the year 1947, the defendants Robert L. Smith and Gladys Smith claimed to have purchased certain lands from the partnership, which they claim includes approximately 22.6 acres of land which the petitioner "insists was pointed out to him by the said Farrar and Downey as being part of the lands so conveyed to him"; that the "said 22.6 acres lie east of the line beginning on Robert Street and extending north 2,243 feet to the original land lot line of Lot No. 4; thence east 672.6 feet to the northeast corner of said Lot No. 4; thence south along the District line 339.7 feet; thence southwesterly to the beginning point 2046.7 *616 feet"; that after the purported sale to the Smiths, they took possession of the 22.6-acre tract, claiming it as their own and refusing to permit the petitioner to exercise any rights of ownership over the land, and they are continuing to do so; that, since Downey and Farrar actually pointed out to the petitioner the east line of the lands purchased by him, and at the time the partnership owned the adjoining lands, and petitioner actually went into possession thereof, the partnership is bound thereby and estopped from denying that said line so pointed out is the east line of the lands conveyed to the petitioner, and the Smiths, at the time they claimed to have purchased, had notice of the petitioner's claims to the land on account of his actual possession and occupancy thereof, and if they have a deed to the lands they purchased with knowledge and notice of his claim; that the acts of the Smiths constitute a continuing trespass on the petitioner's lands; and that he has no adequate remedy at law.
The prayers of the petition were: (a) for process; (b) that the Smiths be enjoined and restrained from trespassing on the 22.6-acre tract of land; (c) that the petitioner recover the 22.6-acre tract of land; (d) "that should the court determine that it is necessary for petitioner to maintain his action and to recover the property described herein, that the deed of the Summerville Lumber Coal Company to petitioner, attached hereto as Exhibit `A,' be reformed, that the description thereof be reformed so that the east line of the description in said deed be the same as the east line of the 22.6-acre tract described in said petition, and that said deed include all of said 22.6-acre tract"; and (e) for general relief.
General demurrers to the petition were interposed by the partnership and by the defendants, Robert L. Smith and Gladys Smith. The trial court sustained the demurrers, and to this judgment the plaintiff excepted. Under the rather vague allegations of the petition, it would appear that the plaintiff claims to have purchased certain property, but in the deed of purchase a described tract of 22.6 acres was omitted from the description. The plaintiff seeks to recover this 22.6-acre tract, which it is alleged lies *617 east of Robert Street, under the theory of the establishment of a disputed boundary by a parol agreement between adjoining landowners; alleging, after the petition was amended, that prior to the purchase the plaintiff and an agent of the sellers "went to the lands belonging to the defendants and the lines surrounding the property proposed to be sold to petitioner were actually pointed out to him by the said Farrar and Downey, and immediately after the execution of the said deed that he went to said lands in company with the said Farrar and Downey, and they actually staked out on the ground the location of the proposed extension of Robert Street and the east boundary line of the lands sold to petitioner." Failing a recovery on the theory of the establishment of a boundary line, the plaintiff seeks reformation of the deed.
The allegations of the petition are insufficient to show the establishment of a disputed boundary line, because (1) the averments of the petition show that the alleged oral agreement was a contemporaneous agreement between the purchaser and seller at the time of sale; and (2) the petition fails to show that the agreement related to an indefinite, unascertained, or disputed line between coterminous landowners. While the petition alleges that the line was staked out "immediately after" the deed was executed, the petition further discloses that the line had, prior to the execution of the deed, been agreed upon; and the staking out of this same line was clearly a part of the same transaction. Accordingly, if an agreement as to a line "immediately after" the execution of a deed might ever be considered valid, upon the theory that it was between coterminous landowners, an agreement such as the present one could be considered nothing more than a contemporaneous agreement.
As stated in Taylor v. Board of Trustees of Glenlock PublicSchool,
Since the oral agreement as to the boundary was merged in the deed, any right or claim that the parties may have with respect to the omitted tract would depend on reformation. Kennedy v.Kennedy,
The petition is wholly insufficient as one seeking reformation, for the reason that the petition does not attempt to allege that there was any mutual mistake of the parties in the execution of the deed; nor does it allege that there was fraud on the part of one party and a mistake on the part of the other.
For the foregoing reasons, the petition set forth no cause of action; and the trial judge did not err in sustaining a general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur. *619