Trammell v. Thomas

226 Ga. 148 | Ga. | 1970

Felton, Justice.

Pretermitting the question of whether the description of the land being litigated over is a correct, legally sufficient description, the court erred in granting the defendant’s motion for a summary judgment for at least two reasons. The evidence of defendant on summary judgment does not pierce the pleadings on the question whether the deed of correction from George J. Cheek to Mary Ruth Leonard, purporting to correct the description in a deed between the parties dated July 14, 1931, which prior deed caused an overlapping of the description of the land in the dispute in deeds conveying the disputed land to the parties. This deficiency in the evidence creates other deficiencies. If there is no overlapping, the question of adverse possession between the parties is that of actual possession for 20 years or 7 years under color of title. If there is an overlapping, assuming the description in the respective deeds is sufficient, the adjacent owners might both be in constructive possession of the same land, and as a consequence, no prescription by adverse possession for 7 years can arise in favor of either party. Code § 85-404. There may be other jury questions of fact which we do not intend to intimate do not exist. The two vital questions are sufficient for the purposes of this decision.

Judgment reversed.

All the Justices concur.