Osteen v. Wynn ( 1908 )

Evans, P. J.

(After stating the facts.)

1. The demurrer raises the question of the sufiieieney of the description of the land upon which the trespass was alleged to have been committed. The petition alleged that the plaintiffs were the owners of land lot number 140 in the thirty-third district of Chattahoochee county, except 50, acres in the southeast corner, and that the defendants had cut and were proceeding to cut the timber thereon immediately surrounding the excepted 50 acres. Judicial notice will be taken, as to lots of land laid out by State survey in this county, that each contains 202% acres, and is in the form of a square. Huxford v. Southern Pine Co., 124 Ga. 182 (52 S. E. 439). A conveyance of 50 acres in the southeast corner of such a lot of land has been held to contain a sufficient description. The corner of the lot is to be taken as a base point from which two sides of the tract of land shall extend equal distances, so as to inclose by parallel lines the quantity of land conveyed. Payton v. McPhaul, 128 Ga. 510 (58 S. E. 50); Wilkinson v. Reper, 74 Ala. 40; Walsh v. Ringer, 2 Ohio, 327 (15 Am. D. 555). The petition therefore describes the land as lot 140 except a square in the southeast corner containing 50 acres, and the timber which it is alleged is being wrongfully removed was described as located on this lot of land immediately surrounding the quadrangular area excepted in the defendants’ deed, and the description was sufficiently definite.

2. The first ground of the amended motion complains of the following charge to the jury: “The deed from B. L. Wynn to E. J. Wynn had the legal effect of vesting in E. J. Wynn one • half undivided interest in all the land which E. L. Wynn had in the lots mentioned, among others, in all of lot 140 except 50 acres in the southeast corner of the lot. These lands are designated as the Wooldridge plantation on the Cusseta and Jamestown road; and those words, that is, that they are known as the Wooldridge plantation on the Cusseta and Jamestown road, are matters of further description of the land.” The error alleged is that the deed described only conveyed such interest of E. L. Wynn “in so much of lot 140 as was included in what was known as the Wooldridge plantation, whether more or less than 5.0 acres of lot 140; and because the reference to the Wooldridge plantation was not a further description of the 50 acres, but 50 acres was a further description of the Wooldridge plantation;” and the description, “known as the Wooldridge plantation,” was one of higher dignity and should prevail over the description “50 acres in lot No. 140.” Where a deed contains two descriptions of the land conveyed, one general and the other particular, if there is any repugnance, the latter will prevail. Hannibal etc. R. Co. v. Green, 68 Mo. 169; 2 Devlin on Deeds (2d ed.), §1039; 5 Cyc. 880; Tyler’s Law of Boundaries, 29; Shackelford v. Orris, 129 Ga. 791, p. 794 (59 S. E. 772). The description here was of definite lots and parts of lots; and under Payton v. McPhaul, 128 Ga. 510 (58 S. E. 50), all of lot 140 was conveyed except a square, embracing fifty acres in the southeast corner. The added words, “known as the Wooldridge plantation,” were a general description, and must yield to the previous definite and particular description. It was therefore not error for the court to charge that this deed conveyed all of lot 140 except 50 acres in the southeast comer, and that the words “known as the Wooldridge plantation” were matter of further description. Nor do we, in the light of what has just been said, find any errors in the second, third, fourth, sixth, seventh, and ninth grounds of the amended motion, complaining of certain charges of the court relative to the effect of the descriptions in the several deeds. Nor do we think he erroneously construed the contentions of' the parties, or diverted the minds of the jury from the real contentions.

3. The eighth, tenth, and-twelfth grounds of the motion complain of the charge of the court that if there was any agreement, between the coterminous proprietors as to a dividing line, and that agreement- continued for a period of twenty years, the effect of the agreement would be to establish the agreed line as the dividing "line between the two tracts. This charge is alleged to be an erroneous statement of the law concerning conventional boundary lines, in that it includes as an element necessary to the validity of such an agreement an observance of it for a period of time not less than twenty years. On the subject of acquiescence the court charged: “In order for acquiescence to be binding on the parties, it must be shown by the evidence, in the first place, that there was an acquiescence, that is, both parties agreed that a particular place was the line between the 50 acres of lot 140; and not only having agreed to it, but that the agreement continued for a period of seven years or more, and possession was respectively had under such agreement.” This charge is said to be erroneous, because it makes an agreement and possession under such agreement for seven years necessary to acquiescence, and because it confounds acquiescence with agreement. In Farr v. Woolfolk, 118 Ga. 277 (45 S. E. 230), this court pointed out the distinction between a dividing line established by acquiescence for seven years by acts or declarations of adjoining landowners as provided in the Civil Code, §3247, and a parol agreement between coterminous proprietors that a certain line shall be the true dividing line. Where there is room for controversy as to the location of a dividing line, the coterminous proprietors, independently of the cited code section, may orally agree upon the line; and if the agreement is' accompanied by possession to the agreed line, or is otherwise duly executed, such agreement will be valid and binding, and the line thus defined will thereafter control their deeds. However, it is not necessary that possession under the agreed, line should be had for twenty years, to give validity to the agreement, though the agreement derives additional weight from long acquiescence. A parol agreement between adjoining landowners to fix a boundary line between their respective tracts theretofore unascertained, uncertain, or disputed, is not within the operation of the statute of frauds, for the reason that no estate is created. When a boundary line is established by consent, the coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of a parol transfer of title. Hugey v. Detweiler, 35 Pa. St. 409. A line is not fixed or located by verbal agreement unless actual possession is had up to the line, or something be done to. execute the agreement in the direction of physical identification, as the erection of monuments, fences, marking of trees, or the like. But when adjacent landowners make a consentible line between their respective tracts, it is not necessary that possession be had to the line for twenty years in order to establish the agreed line as the divisional line. In some jurisdictions a parol agreement between adjoining proprietors as to a dividing line is considered within the statute of frauds, and will not be enforced unless acted upon to such an extent as to make it inequitable for either party to set up the true boundary. Meyers v. Johnson, 15 Ind. 261. But in this State, on the authority of the cases cited in Farr v. Woolfolk, supra, and upon the strength of their reasoning, we have accepted the doctrine that in the case of disputed or uncertain boundary between coterminous landowners, an executed parol agreement is not within the statute of frauds and will suffice to establish a dividing line. The charges to which exception is taken conflict with the view herein expressed, and to that extent are erroneous.

4. But-it was insisted on the argument, that even if the court did err in his instructions on the subject of establishing a dividing line by acquiescence or agreement, the errors were harmless, because the plaintiff purchased his land without notice that any divisional line had been established either by acquiescence for seven years by acts or declarations of his predecessor in title, or by any executed parol agreement. There was evidence that at the time the plaintiff acquired his title, and even up to the trial, there were indications of the former existence of the fence along what the defendants claim is the line agreed to and acquiesced in by the plaintiffs’ predecessors in title. Indeed there was no serious conflict in the evidence that the line which the defendants claim to was acquiesced in by the declarations and acts of the plaintiffs’ predecessors in title while clothed with the title for more than seven years. Nor is it disputed that Mr. Wooldridge pointed out this line to Dr. Howard as the boundary between the Wooldridge home place and the Hardaway place at the time he bargained the latter tract to Howard. Although Mr. Wooldridge made a deeiffo his wife and children a few months before he executed the Howard deed, yet the trade with Howard was consummated the previous year. There can be no doubt, in a contest of boundary between two parties who have purchased adjoining tracts from a common vendor, that the line which their vendor had caused to be run as the dividing line between the two tracts before he sold them will be recognized as the dividing line between the parties mediately deriving title from him. Tyler on Boundaries, 335. Will such dividing line also bind their successors in title ? If we are- right as to our premise that an executed parol agreement between coterminous proprietors fixes the location where the estate of each owner is supposed to exist under his deed, and that each owner holds thereto by force of his deed, then the conclusion is irresistible that the consentible line identifies the boundary as defined in the contesting titles. Wood v. Crawford, 75 Ga. 733; Ingram v. Fisher, 70 Ga. 745. As was said in Miller v. McGlaun, 63 Ga. 435, “If there had been any dispute on the point where the true dividing line of the two lots ran, and by agreement of the coterminous owners thereof a line had been fixed on as such true line, whether the creek or any other, it can not be doubted that the parties could do so by verbal agreement, and such agreed line would bind subsequent holders under either, and that proof thereof could be made in parol.” And it has bqen elsewhere held that an agreement fixing the location of a disputed boundary line between two adjoining landowners is binding on their respective grantees. Bartlett v. Young, 63 N. H. 265; 4 Am. & Eng. Enc. L. (2d ed.) 860; 5 Cyc. 940. By parity of reasoning, where the dividing line is located by the law, i. e., by acquiescence for seven years by acts or declarations of adjoining landowners (Civil Code, §3247), such line becomes established as the true line between the adjacent tracts, and is binding on subsequent grantees. It would emasculate the force of the statute to hold that a line becomes established by seven years’ acquiescence, but that subsequent grantees must have notice that the line has been acquiesced in before they will be affected. When the line is once established so as to bind the present owners, their respective grantees will likewise be bound. Both parties claim under a common grantor; the plaintiffs’ deeds cover all of lot 140 except 50 acres in the southeast corner, and Howard’s deeds (under whom the defendants claim) cover the excepted 50 acres. Their respective title deeds embraced the whole of lot 140; and if the lines of demarcation had never been established or acquiesced in, the true line as'.ascertained by a survey would control the rights of these litigants. On the other hand, if the divisional line has been fixed either by an executed parol agreement of the coterminous proprietors, or by seven years acquiescence by acts or declarations of the adjoining landowners, then the boundary line located by the agreement, or by acquiescence, as provided by the statute, will be taken as the dividing line between the two properties. Riley v. Griffin, 16 Ga. 141 (60 Am. D. 726).

Judgment reversed.

All the Justices concur.