Palmer v. Mann

41 S.E.2d 304 | Ga. | 1947

This petition in ejectment was not subject to demurrer on the ground that no proper abstract of title was attached thereto; or because, as contended, the petition shows on its face that the land sued for was not included in the deed set forth as conveying title to the plaintiffs; or because the description embodied in the petition as amended failed, as alleged, to sufficiently identify the land sued for; or because the amendment, as alleged, sought to set forth a new cause of action, in that the land sued for in the original description and the land described in the amendment were different and distinct parcels; or because the amendment setting up the additional claim of title by prescription, by virtue of seven-years' possession under a deed, shows that the plaintiffs were not in possession at the time the suit was brought.

No. 15659. JANUARY 9, 1947. REHEARING DENIED FEBRUARY 7, 1947. STATEMENT OF FACTS BY JENKINS, CHIEF JUSTICE. In a statutory suit in ejectment for recovery of a six-acre parcel of land, the plaintiffs in their petition claimed title by virtue of a deed executed in 1943 to a forty-acre tract of land of which the six acres here in dispute is alleged to be a part. The forty-acre tract was described as being "in the 12th Land District of Henry County, Georgia, being thirty-four acres off the east side of the west half lot 123; and six acres in the extreme southern part of the west half of lot 134; and bounded: on the north by lands of Mary Warner and Martha Ragland; on the east by lands of Martha Ragland, and J. A. Arnold and J. C. Arnold; and on the south the land of Charley Lamb; and on the west by lands of C. I., Powell. These being the landowners surrounding said tract of land in year 1923." Attached to the original petition was a rough sketch showing the road, the triangular six-acre parcel in dispute on one side thereof, and the thirty-four-acre tract not in dispute on the other side. This plat also showed the adjoining landowners, but did not indicate the marked corners or indicate the courses and distances of the lines of either tract.

In response to both general and special demurrers setting up an inadequate description of the land sued for, that the paper title set forth in the petition excludes by its terms the six acres sued for, and that no abstract of title was attached, the plaintiffs amended their petition by describing the six-acre parcel of the forty-acre tract as follows: "Beginning [at a specified point] and running in a easterly direction from said road 567 feet to a rock corner; thence in a northeasterly direction 1002 feet to a rock corner of the north side of said public road; thence in a southwesterly direction along said public road 1900 feet to the beginning point. And said six-acre tract of land being in the southern part of lot 134 of the 12th land district, Henry County." A new sketch was attached to the amendment, similar in all respects to the original plat except that the new plat showed the fixed and designated corner landmarks of the disputed triangular six-acre tract across the road from the undisputed thirty-four-acre tract, and indicated the distances between such indicated corners. The description set forth by the amendment to the petition indicated both the fixed and described corner landmarks as shown by the plat, by beginning at one of these designated landmarks and then setting forth the courses and distances around the six-acre triangular tract back to the starting point. The plaintiffs, by amendment, in addition to amplifying the description, claimed title to the disputed six acres by prescription "under color of title" for more than thirty-five years, and attached what purports to be an abstract of title. The demurrers were renewed, after the petition was thus amended, with the further ground that the amendment seeks to set forth a new cause of action by claiming a parcel of land new and different from that originally sued for. Error is assigned on the order overruling the renewed demurrers to the petition as amended. For a better understanding of the case, a facsimile of the plat attached to the amended petition is hereto appended.

[EDITORS' NOTE: EXHIBIT A IS ELECTRONICALLY NON-TRANSFERRABLE.] 1. "An action of complaint for land can not be dismissed on demurrer to the abstract of title annexed to the declaration. The object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied upon at the trial." Crawford v. Carter, 146 Ga. 526 (91 S.E. 780); Chancey v.Johnson, 148 Ga. 87 (95 S.E. 975); Peeples v. Rudulph,153 Ga. 17 (111 S.E. 548); Yonn v. Pittman, 82 Ga. 637 (1) (9 S.E. 667).

2. In an action of ejectment the premises are described with sufficient certainty, if the description furnishes the key to the identification of the land sued for, and parol testimony or other extrinsic evidence would be allowable to show the location of the lines and corners set forth therein. Jackson v. Sanders,199 Ga. 222, 224 (1) (33 S.E.2d 711, 159 A.L.R. 638);Holcombe v. Dinsmore, 164 Ga. 200 (137 S.E. 924). The amended description of the six-acre parcel of land not only furnishes a key to its identification, but is also sufficiently definite in and of itself to base a writ of possession thereon.

The description of the six acres embodied in the amendment to the petition is supplementary to the original description and original plat. Both the amended description and the new plat are specific and complete, the description referring to and the plat indicating definite permanent landmarks and corners. Both the amended description and the plat show the distances between the indicated landmarks. The amended description indicates not only such distances, but the courses or direction as well. While it would seem that the compass arrow marked at the top of both of the plats is somewhat inaccurate, in that, commencing with the first-stated course and distance as set forth by the amended description, it appears that the "compass arrow" should have been made to point "east" instead of "north," it seems clear that the specific amended description will take precedence of any merely inaccurate compass symbol as indicated at the top of the two plats.

The contention which is many times stressed in the renewed demurrer, and which is mainly urged in the plaintiff in error's brief, is that the amendment seeks to set up a new cause of action, in that the land sued for as originally described, and the land described in the amendment and illustrated by the new plat are altogether distinct and different. The contention is that, while the original plat and the new plat are substantially identical except that the new plat indicates the corner landmarks and gives the distances between them, the courses and distances set forth in the amendeddescription can not be taken to describe the six acres as "in the extreme southern part of the west half of lot No. 134," and that the six acres was thus described in the original petition. It will be recalled from the description in the original petition that the thirty-four-acre portion of the forty-acre tract, and the six-acre portion belong to different land lots — the thirty-four acres to lot No. 123 and the six acres to lot No.134. Neither plat indicates the land lots at all. Both plats show the thirty-four acres lying on one side of a designated public road, and the six acres, triangular in form, lying on the other side. The adjoining landowners are indicated on both plats. The three corners of the six acres are definitely fixed both by the amended description and by the new plat. We are unable to see how, from the face of the record, the six acres can not lie "in the extreme southern part of the west half of lot No. 134," when we take the courses and distances from the amended description. If we take the compass symbol marked at the top of the page on both plats as controlling over the expressed description, there would be trouble; but, as already stated, we feel unauthorized to apply such a rule, especially when the precise difficulty was not pointed out by the demurrers. Nor is this court able to say as a matter of law that the description originally set forth as the basis of the plaintiffs' paper title does not include, as alleged, the six acres sued for. As we see and understand the record, the basis of this contention is just the same as in the point just dealt with.

3. The ground of demurrer attacking the amendment setting up an additional claim of title by prescription by virtue of more than seven-years' possession under a deed — the attack being based on the fact that at the time the suit was instituted the petition shows that the plaintiffs were not in possession, but that possession had recently been taken by the defendant — is without merit. In Peeples v. Rudulph, 153 Ga. 17 (3) (111 S.E. 548), this court said: "Prior to 1863 a statute of limitation, as applied to suits for land, was recognized in this State; and even though the adverse possession had been held for such a length of time as to bar any suit brought by the true owner to recover land, yet, if subsequently the adverse possession was abandoned, the true owner's rights again attached. Russell v. Slaton, 25 Ga. 193; Vickery v.Benson, 26 Ga. 582 (3); Long v. Young, 28 Ga. 130. By the Code of 1863 the doctrine of title by prescription was introduced in this State. See Code of 1863, §§ 2641, 2642; Civil Code (1910), §§ 4168, 4169. While a prescriptive title may be extinguished by the ripening of a prescription in favor of a subsequent adverse possession (Godley v. Barnes, 132 Ga. 513 (64 S.E. 546)) yet if adverse possession be held for seven years under color of title, a title by prescription arises, and that title is not lost or impaired by any subsequent abandonment of the adverse possession. Milliken v. Kennedy, 87 Ga. 463 (13 S.E. 635); Tarver v. Deppen, 132 Ga. 798 (7), 800 (65 S.E. 177, 24 L.R.A. (N.S.) 1161)." See also, in this connection, Hightower v. Blakely Hardwood Lumber Co.,163 Ga. 776, 777 (2) (137 S.E. 22).

Judgment affirmed. All the Justices concur.