Smith v. Lanier , 199 Ga. 255 ( 1945 )

1. The direction of a verdict on the theory that a divisional line had been established by parol agreement between coterminous landowners was not authorized, since the evidence did not show that the agreement was made in consequence of an indefinite, unascertained, or disputed line; and the agreement was not with respect to lands which had already been conveyed.

2. Although a divisional line may be established by acquiescence for seven years by acts or declarations of adjoining landowners, without regard to whether the line was indefinite, unascertained, or disputed, this principle is not involved, under the circumstances in this case, for the defendant relies upon a parol gift of the land in controversy.

(a) The direction of a verdict was not authorized on the theory of a parol gift of land, because the evidence fails to show that the donee had made valuable improvements on the property.

3. The intervenor, who sought to intervene as warrantor of the plaintiff's title, showed no such interest in the subject-matter as would entitle her to intervene.

No. 15137. MAY 10, 1945. Hoke Smith filed a suit in two counts against Mrs. W. J. Lanier and N. G. Howe. In the first count, he sought to recover from the defendants a strip of land described as being "20 acres, more or less, of lot of land No. 187 in the 1st land district of Coffee County, Georgia, bounded on the north by a line parallel to the south original line of said lot at a distance of 1096 feet north of said original line, east by the western edge of the right-of-way of the Georgia Florida Railroad, south by a wire fence approximately parallel to said lot line and 210 feet, more or less, south of said north line, and west by the eastern edge of the right-of-way of State highway No. 31." He alleged that he was the lawful owner of the property by virtue of a chain of title set out in his petition, the first link of which was a deed from Mrs. W. J. Lanier; and further alleged that the premises were in the unlawful possession of that defendant under some pretended claim of right, and of N. G. Howe as her tenant. The second count sought the recovery of mesne profits.

No separate defense was filed by Howe, but Mrs. Lanier filed an answer in which she denied the plaintiff's right to recover, admitted possession of the land, and set up her claim of title thereto by virtue of a deed dated January 17, 1935, and an agreement entered into prior to the execution of the deed, under the terms of which, it was alleged, the grantors in the deed agreed to convey to her, not only the land described in the deed, but also a strip of land approximately 171 feet wide running north and south on the south side of the tract described in the deed, and running 210 feet south of the line where the wire fence was located at the time of the agreement, the south line of which was to run from the west original land-lot line eastward to the west boundary of the right-of-way of the Georgia and Florida Railroad; that pursuant to the agreement, and before the deed was executed, one of the grantors measured off the 210-foot strip of land and moved the wire fence to the agreed-upon line of the southern boundary of the tract; that she has held open, peaceable, uninterrupted, and exclusive possession of the 210-foot strip of land since the date the fence was moved, and that for a period of more than seven years the fence, where it is now located, has been acquiesced in by the adjoining landowners as the dividing line, and she has held up to such dividing line for a period of more than seven years. She claimed title to the land described in the petition, and sought to recover, in addition thereto, an extension of the 210-foot strip of land described in the petition lying west of State highway No. 31 and running to the west boundary line of the lot (this extension being that portion of the land in controversy which is woodland), which she alleged the plaintiff had unlawfully held possession of since the execution of the deed under which he claims title. She prayed that title to the lands be decreed in her, and that the plaintiff be required to surrender possession of the land held by him.

Substantially the following facts were developed at the trial: J. L. Sapp Sr. died intestate on January 7, 1929, leaving surviving him his widow, Mrs. Lelia Sapp (now Mrs. W. J. Lanier, the principal defendant), and three children by a former marriage, J. L. Sapp Jr., Ruth M. Sapp (now Mrs. Ruth Sapp Andrews), and Mildred Sapp. Afterward Mildred Sapp died, leaving her brother and sister, J. L. Sapp Jr. and Mrs. Ruth Sapp Andrews, as her sole heirs; and, following the death of Mildred Sapp, the widow and the two remaining children of J. L. Sapp Sr. agreed to a division in kind of the realty owned by J. L. Sapp Sr., and in furtherance of this agreement selected three appraisers to divide the property, agreeing to accept the result of their division and awards. The real estate was divided by the appraisers, and Mrs. W. J. Lanier was awarded a tract of 230 acres, more or less, in the northern portion of lot of land No. 187 in the 1st land district of Coffee County. The evidence did not disclose a description of this tract of land, but did disclose that, in pursuance of the award and agreement, on January 17, 1935, J. L. Sapp Jr. and Mrs. Ruth Sapp Andrews conveyed their interest in this tract of land by warranty deed to Mrs. W. J. Lanier. For convenience, this tract is referred to as "tract 1." On January 17, 1935, pursuant to the awards and agreement, Mrs. W. J. Lanier by warranty deed conveyed her interest in a 170-acre tract of land, south of and adjacent to her lands, to J. L. Sapp Jr. and Mrs. Ruth Sapp Andrews, describing the property as being "170 acres of lots 182 and 187 in the 6th district of Coffee County, Georgia, commencing at southwest corner of lot 187 in 1st district, thence running north 89 degrees east 1410 feet to branch, thence south 36 degrees east 2230 feet along branch, thence south along said branch 56 degrees 30 minutes east 1610 feet to right-of-way of A, B C, thence north 13 degrees 30 minutes west 3894 feet along the west side of right-of-way, thence south 89 degrees west 3205 feet to west original line of 187, thence south 1 degree east along west original line 1096 feet to point of beginning." This deed was not introduced in evidence, but its execution, description, and date of recording (April 3, 1935), were alleged in the petition and admitted in the answer. This tract, for convenience, is referred to as "tract 2." In September, 1941, Mrs. W. J. Lanier executed a quitclaim deed to J. L. Sapp Jr. and Mrs. Ruth Sapp Andrews, which was recorded September 13, 1941, and which conveyed the identical property described in the warranty deed to tract 2, except that the property was described as being in the "first district" instead of the "sixth district," and which contained the recital that the deed was made for the purpose of correcting this error in the district number. Prior to the execution of the quitclaim deed, J. L. Sapp Jr., on October 16, 1937, conveyed by warranty deed to Mrs. Ruth Sapp Andrews the following described property: "All that tract or parcel of land lying and being in the first land district of Coffee County, Georgia, being an undivided one-half interest in those parts of original lots of land Nos. 187 and 182 in said land district of said county, described as beginning at the southwest corner of said lot No. 187, thence north 89 degrees east 1410 feet along the south original land-lot line of said lot to a stake and the run of said branch, thence south 36 degrees east 70 feet to a stake and the run of said branch, thence north 89 degrees east 1982 feet, more or less, along a line parallel with the south original land lot of line of said lot No. 187 to as stake on the west boundary line of the Georgia Florida Railroad right-of-way, thence north 13 degrees 30 minutes west 1177 feet, more or less, along the west boundary line of the right-of-way of the Georgia Florida Railroad to a stake, thence south 89 degrees west 3205 feet to a stake on the west original land-lot line of said lot No. 187, thence south 1 degree east 1096 feet along the west original land-lot line of said lot No. 187 to the southwest corner of said lot and point of beginning," and being a part of the lands conveyed by the warranty deed conveying tract two. For convenience this tract is referred to as "tract 3." On June 4, 1942, Mrs. Ruth Sapp Andrews conveyed tract three by warranty deed to Hoke Smith, the plaintiff.

Mrs. W. J. Lanier, called by the plaintiff as an adverse party for cross-examination, testified in part as follows: "We agreed to let [the arbitrators] divide it, and we would accept the result of their efforts in making up an equal distribution of the property. That was on lot 187 and the lot right under it, 182. . . According to the division, I got 230 acres in the northern part of the lot, and Ruth and J. L. got the property in the southern part of the lot and a tract in the lot below that. . . It is not my contention that the deed which I received from J. L. and Ruth did not convey all of the land which I now contend is mine. I contend that the deed holds all the land that I now own. My deed does not describe all the land, but I can explain to you why. I really don't know how much it fails in describing it. It has been run out several times, and it has never been the same every time. Yes, there is a strip across there. I do not know how wide that is, but is more than 200 feet. No, my deed doesn't describe the 200 feet. The deed which I have from J. L. and Ruth is supposed to include the strip 200 feet or more wide that I also claim to own. As to whether or not it actually includes it, well, my deed reads ``more or less,' and that is the reason it is that way. As to whether it comes down according to its dimensions to the southern part that I now claim, I don't know how to answer the question to tell you why it is that way. After the arbitrators had laid off that property, the others and I had already agreed to accept their awards without question. And then J. L. decided that he would give me 200 or 210 feet more south of the tract that the arbitrators set off to me. That additional 210 feet to me was supposed to be in the deed. Well, it is not in there, but I wish you would let me tell you why it is written like that. Yes, J. L. agreed that I could have an additional strip of whatever width that tract is, 200 or 210 feet. Ruth was not present on the day J. L. agreed to give me the 210 feet, but she was present later before the fence was put up. . . While we were out there in the field — we rode out to the farm — and I says, ``J. L., if this is all that goes with the home place, if you don't mind I will take Mildred's part, and you and Ruth have the home place.' He says, ``You don't have enough good land with that at all, and if I will step off 200 feet will that be all right?' I says, ``All right.' And he began to step it off — some 200 feet, or about 200 feet — but when he got out across the field he yelled back at me and says, ``Mother, will this make you a good two-horse farm?' I says, ``Yes.' It really didn't matter to me. . . It is my contention that J. L. and Ruth gave me that additional strip there. When J. L. stepped it off, he stepped to one side and picked up a root lying in the field and put it down there. . . I says, ``Will you put a straight line through there, because I can't figure fractions, and I want a straight line through there so I will know where my line is all the time,' and he says, ``I will.' He put a straight line all the way through. It was put there by J. L. and the man who surveyed it out when he put the fence up. He went on across the road through the field. Yes, I have seen the mark; it is a surveyor's mark — a cut on a tree. It goes across marked that way to the original land line over on the west. . . It is not true that these marks were put there within the last two years — they are old marks. I have been working the turpentine up to the original line ever since it was deeded to me. It is not true that the turpentine in there was not worked until about the last two or three years. It has been worked every year, nearly, since we have had it. I don't know how many acres there would be in this part added to mine. I have whatever my deed calls for, plus whatever that strip is. . . That strip of land has been in cultivation ever since I went to the farm. I am cultivating it right up to my fence — to the highway. The woodland I am not cultivating. . . Ruth and I have never had a dispute about the fence until since she sold it to Hoke. . . J. L. and I weren't in any dispute."

Mrs. Ruth Sapp Andrews testified that she knew of no error in any of the deeds; that she knows where the fence is located between the properties, but does not know where it is located with reference to the deeds; that she has paid the taxes on 85 acres of land conveyed to her by her brother, and she didn't know until 1937, when a survey was made, that her tract of land was short in acreage; that she knows where the fence is, and the fence has not been moved since it was put there by J. L. Sapp Jr.; that she had never heard until two years ago that Mrs. W. J. Lanier was to have more than her deed called for; that she does remember writing Mrs. Lanier a letter, in which she told Mrs. Lanier: "Mother, I don't know anything about the fence. I know that we agreed to give you some more than your first line, but I don't know how much. Whatever you and J. L. do about it would be all right with me."

Hoke Smith, the plaintiff, testified that he was one of the appraisers who divided the property; that, after the property was divided, he drove up to the farm, and Mrs. Lanier said something about not having enough land, and J. L. Sapp Jr. said, "Well, Mother, you can have some of this," or "use some of it," one or the other; that Mrs. Ruth Sapp Andrews was not present at the time; that J. L. Sapp Jr. said that they were just going to let her use the land — they weren't going to turn it over to her as her part; that J. L. Sapp Jr. stepped off down south from where the surveyed line was at that time and hollered back and asked Mrs. Lanier whether that would be enough to make her a two-horse farm; that he thinks the fence was then put approximately on the place where J. L. was standing when he hollered back, and so far as he knows the fence hasn't since been moved; that, after he purchased from Mrs. Ruth Sapp Andrews, he stopped a man from working the turpentine timber in the woods; that the timber had been worked by Mrs. Lanier over on J. L. Sapp's land, and beyond the 210-foot strip, and about 200 feet south of the south boundary of the 210-foot strip; that the witness looked for a line blazed through the woods, and found none; that, since last fall, after the woods were burned off, he found a line blazed through the woods which was in line with the fence, but that the blazes were fresh signs after the woods had been burned; that he knew all the time that the fence was where it is now located, and knew that Mrs. Lanier was claiming up to the fence at the time he bought the property; and that there had not been a lawsuit between Mrs. Lanier and Mrs. Ruth Sapp Andrews.

Mitch McIver testified: that he worked the turpentine timber for Mrs. Ruth Sapp Andrews and the wife of J. L. Sapp Jr. in 1940, the year following the death of J. L. Sapp Jr.; that, after he had worked two dippings, working the whole branch, Mrs. J. L. Sapp Jr. told him not to work beyond a straight line with the fence, because the land north of a line extending from the fence belonged to Mrs. W. J. Lanier; that he and his boys tried to find a line through the woods, could find none, and blazed a line on the trees, which was a straight line extending from the fence and in line with the fence; that he had started working the land north of this line, but he was stopped by Mrs. J. L. Sapp Jr. and told that the land belonged to Mrs. Lanier.

Mrs. J. L. Sapp Jr. testified that, before her husband died on October 24, 1939, she heard a conversation between him and Mrs. Lanier, and her husband told Mrs. Lanier he was going to move the fence, and Mrs. Lanier told him he wasn't, and afterward she didn't hear anything further about the matter.

After the introduction of evidence by the plaintiff, the trial court, on motion of counsel for the defendants, dismissed an intervention filed by Mrs. Ruth Sapp Andrews, in which she sought to intervene in the suit on the grounds that she was the warrantor of title in the deed to the plaintiff, and that the plaintiff was withholding payment of $500 on the purchase-price of the property pending the outcome of the suit, which facts were proved by the evidence. Exceptions pendente lite to this ruling were filed.

On motion of counsel for the defendants, the trial court directed a verdict for the defendants. A motion for new trial was overruled, and the plaintiffs in error except to this judgment and the judgment dismissing the intervention. 1. The principal questions for consideration, in determining whether the evidence authorized the direction of a verdict for the defendants, are: (1) whether an uncertain, indefinite, or disputed boundary line between coterminous landowners had been fixed by parol agreement; (2) whether the dividing line between the coterminous landowners had been established by acquiescence for more than seven years by acts or declarations of the adjoining landowners; and (3) whether the principal defendant had acquired such a perfect equitable title by virtue of a parol gift of the strip of land in dispute as would defeat a title acquired by a purchaser with notice.

The first proposition needs little elaboration. The undisputed evidence showed that there was no unascertained, uncertain, or disputed line between coterminous landowners. The evidence shows that, when a division of the property was undertaken between the heirs, the defendant, Mrs. Lanier, was dissatisfied with the portion of the land she received; and that, in order to satisfy her, a new and distinct line was established and her boundary extended in order to give her an additional strip of land. Therefore, since it is necessary in order to establish a dividing line between coterminous landowners by parol agreement alone that there shall be a line which is unascertained, uncertain, or disputed (Taylor v. Board of Glenlock Public School,185 Ga. 61 (2) (194 S.E. 169); Miller v. McGlaun, 63 Ga. 435), the direction of a verdict for the defendants was not warranted on the theory that a dividing line had been established by parol agreement. Moreover, "the only basis for the ruling that such an agreement is not within the statute of frauds is that in instances where it is applicable it does not operate as a conveyance of land, but merely as an agreement with respect to what has already been conveyed. Farr v. Woolfolk, 118 Ga. 277 (45 S.E. 230). In the instant case it was not an agreement with respect to land that had already been conveyed, for the deeds were made subsequently to the alleged agreement." Taylor v. Board of Glenlock Public School, supra.

2. The second and third propositions will be discussed together.

"Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." Code, § 85-1602. Although there are a number of decisions in which the implication arises that the rule might be otherwise (Osteen v.Wynn, 131 Ga. 209 (3), 62 S.E. 37, 127 Am. St. R. 212;Gornto v. Wilson, 141 Ga. 597 (2), 81 S.E. 860; O'Neal v. Ward, 148 Ga. 62,95 S.E. 709), it would seem to be the rule that acquiescence for seven years by acts or declarations of adjoining landowners will establish a line regardless of whether the boundary line between the two tracts is indefinite, unascertained, or disputed.Yarbrough v. Stuckey, 39 Ga. App. 265 (147 S.E. 160);Farr v. Woolfolk, supra; Tietjen v. Dobson, 170 Ga. 123 (3), 126 (152 S.E. 222, 69 A.L.R. 1408). Consequently, the rules with reference to a line established by acquiescence and a line established by parol agreement differ in two respects: (1) A divisional line, in order to be established by parol agreement, must be one established in consequence of an indefinite, unascertained, or disputed line, which is unnecessary in the case of acquiescence; and (2) a divisional line, in order to be established by acquiescence, must have existed for a period of more than seven years by virtue of the acts or declarations of the adjoining landowners, while this is unnecessary in the case of an agreed line. Farr v. Woolfolk, supra; Osteen v.Wynn, supra. But, although recognizing these distinctions, we do not think that the rule with reference to acquiescence for seven years is applicable in this case, for the reason that the principal defendant relies upon a parol gift of land. It is true that she testified that she claimed under the parol gift and her deed, because the description in her deed contains the words "more or less;" but she further testified that the description in her deed did not cover the property in dispute. The words "more or less" would not in themselves extend the boundaries. The deed itself is not in evidence. The undisputed evidence shows that the deed of the plaintiff and his predecessors in title did include the property in controversy.

It might be noted that Mrs. Lanier's possession of the property in dispute is not shown by the evidence to have been under color of title; and prescription under color of title for seven years is not involved, because color of title will not extend beyond the description contained in the grant. Bradley v. Shelton, 189 Ga. 696 (3) (7 S.E.2d 261), and cit. Nor is § 85-1603 of the Code with reference to possession for seven years under a claim of right, which is a part of the processioning laws, applicable in this case. See, in this connection. Standard Oil Co. v. Altman, 173 Ga. 777 (161 S.E. 353). The case does not involve any attempt to reform a deed or explain an ambiguity.

The defendant contends simply that the strip of land in controversy was given to her by parol agreement, but for some reason, which did not appear upon the trial, the land was not included in her deed. Consequently, we think that, in order to set up an equitable title in defense of an ejectment suit, it would be necessary for the defendant to show more than mere acquiescence for seven years by acts or declarations of adjoining landowners in order to take the case out of the operation of the statute of frauds. We do not think that, where one coterminous landowner makes a parol gift of land to an adjoining landowner, thus changing the divisional line between the properties of the coterminous proprietors, the donee can hold the property as against a legal title by merely showing acquiescence in the new line established by virtue of the parol gift. He must go further, under these circumstances, and bring himself within the rules governing parol gifts. A parol gift of land, accompanied by possession, based upon a meritorious consideration, is not in itself sufficient to pass title into the donee. Thompson v.Ray, 92 Ga. 285 (18 S.E. 59); Doe v. Newton, 171 Ga. 418,422 (156 S.E. 25). But, "A donee of land under a parol gift based upon a meritorious consideration, who, with the consent of the donor, enters into possession and makes valuableimprovements upon the faith of the gift, acquires a perfect equity as against the donor, his heirs and those claiming under him with notice. . . It is now well settled that in such circumstances the donee can defend an action of ejectment by proof of such perfect equity." Sikes v. Seckinger, 164 Ga. 96,102 (137 S.E. 833), and cit. "A mere parol gift . . is not, without more, sufficient to pass title, nor will it vest in the donee any right or equity as against a subsequent purchaser from the donor, with or without notice." Beetles v. Steadham,186 Ga. 110, 112 (197 S.E. 270), and cit.

There being in the instant case no evidence that the defendant as donee made any valuable improvements on the property, the evidence did not authorize the direction of a verdict for the defendants on the theory that Mrs. Lanier had acquired a perfect equitable title by virtue of a parol gift. The plaintiff proved his title to the property in controversy. Other evidence offered was insufficient to demand a verdict against him. The court erred in the direction of a verdict for the defendants at the conclusion of the plaintiff's case.

3. The intervenor showed no such interest in the subject-matter of the litigation as would entitle her to intervene; and no error was committed in dismissing the intervention. Other grounds of the motion for new trial, complaining of the exclusion of evidence, but not argued in this court except by general insistence on these grounds, have been examined. They show no error.

From the above rulings, it follows that the court erred in overruling the motion for new trial.

Judgment reversed. All the Justices concur.