Dye v. Dotson , 201 Ga. 1 ( 1946 )

1. Where the real issue between the plaintiff and the defendant in ejectment, who are coterminous owners, is the location of the boundary line between them, the jury are not obliged to govern their finding by evidence of recent surveys in preference to testimony that the predecessors in title of the litigants recognized and acquiesced for more than twenty years in an old rail fence as a boundary line. Acquiescence by the predecessors in title for more than seven years in a boundary line will bind their grantees. The evidence supports the verdict for the plaintiff.

2. The admission of testimony by witnesses, pertaining to the location of a certain rail fence as being an established line recognized by the predecessors in title of the plaintiff and the defendant, over the objections urged thereto, was not error.

3. Where there is evidence to show acquiescence for more than seven years in a boundary line, by the predecessors in title of the plaintiff and the defendant, and therefore that the title of the plaintiff may include the land in dispute, a charge by the court on a "recognized line" and acquiescence is not improper, as presenting an issue not made by the pleadings, since acquiescence in a boundary line, if proved, does not convey title, but simply establishes the proved title as to the line fixed by the acquiescence.

4. A vague, indefinite, and uncertain assignment of error on an excerpt from the charge of the court presents no question for decision by this court.

5. In statutory ejectment, the defendant may deny the allegations relied upon by the plaintiff as a basis for recovery, but he may allege an affirmative defense by asserting ownership of the lands in dispute. Where, as here, title is claimed by the defendant, based on priority of his title from the common grantors, and evidence is offered by him to support his claim of title, a charge on priority of title by deed is not improper as placing on the defendant a greater burden than required by law.

6. An incomplete ground of a motion for new trial in amplification of the general grounds will not be considered.

7. The assignment of error that the verdict was contrary to the evidence, because the only evidence supporting the verdict was inadmissible, has no merit since such evidence has been held to be admissible for the reasons set forth in division 2 of the opinion.

No. 15484. JULY 3, 1946. On September 12, 1944, in the Superior Court of Warren County, Ellen Dotson filed her petition in ejectment in the statutory form, against E. B. Dye, for the recovery of two described acres of land. She alleged that C. W. and L. A. Cason were the common grantors of the lands of both the plaintiff and the defendant; that the Casons conveyed the lands now owned by her to Richard Tucker; and that she derived her title by will from Tucker. Her abstract of title showed two deeds, which on the trial of the case were introduced in evidence by her, from the Casons to Richard Tucker, dated in 1893, conveying lands described only by adjoining landowners. By amendment the plaintiff alleged that her lands were a part of the 62-acre tract conveyed to her father by one of the deeds referred to above.

In his answer the defendant admitted that he was in possession of the land described, and that both he and the plaintiff derived title to the lands owned by them from C. W. and L. A. Cason as grantors through successive conveyances, but denied that title to the land described was ever in Richard Tucker or the plaintiff.

On the trial it developed that the plaintiff and the defendant are adjoining landowners, and that the land in dispute is a narrow strip which the defendant had enclosed in a wire fence, and which the plaintiff claimed was her land under the will of her father, Richard Tucker. The plaintiff introduced several witnesses, who testified, over objections by the defendant: that at one time there was an old rail fence on what they considered was the dividing line between the properties; that Tucker had placed the fence there at the time he bought the property; that the fence remained there for twenty-five or thirty years, that Tucker cultivated a portion of the land up to the old fence, that there were marks on trees along the line where the old fence had been; that the reputation of the landline in the community was the old rail fence; that during the lifetime of Tucker he tended the land up to his side of the old rail fence, and Mrs. Persons (predecessor in title of the defendant) tended the land on the other side. The area between the old railfence site and the wire fence erected by the defendant is the land in dispute between the parties. The plaintiff testified that she knew the landline between the properties, that it was at the old fence-row, and that she had plowed up to that line.

E. B. Dye, the defendant in the court below, introduced in evidence the deed of C. W. and L. A. Cason to Mrs. M. J. Persons, dated in 1885, conveying land which was described by metes and bounds. He also introduced a deed dated December 5, 1911, from Mrs. Persons to him, conveying 21-1/2 acres of land, which describes the boundaries only by adjoining landowners, Richard Tucker being the landowner on the north. He testified: that Mrs. Persons had given him a plat, dated about 1885, at the time she conveyed him the property; that he had the line in dispute run by Mr. Dixon, surveyor, according to the deed of C. W. and L. A. Cason to Mrs. Persons, and had placed the wire fence on the line thus established; that the plaintiff rented land from Mrs. Persons and worked Mrs. Persons' land; and that the old rail fence was a pasture fence of Mrs. Persons, and she owned property on both sides of the fence. Walter Dixon testified for the defendant: that he was a licensed surveyor; that on August 4, 1942, he had run the disputed boundary line for Mr. Dye by the 1885 plat; that the fence which Mr. Dye had built wasapproximately on the line that he ran according to the plat as being the boundary line between the plaintiff and the defendant; and that the metes and bounds in the plat by which he made the survey coincided with those in the deed from the Casons to Mrs. Persons, dated 1885.

The jury returned a verdict for the plaintiff, and the defendant made his motion for new trial on the general grounds, which was later amended by several special grounds. The exception is to the overruling of this motion as amended. 1. In a statutory complaint for land by ejectment the issue is, did the plaintiff at the time the suit was filed have a legal title to the premises, or any estate, or interest in them, coupled with the then present right of entry as against the defendant? Where, as here, it appears that the plaintiff and the defendant are coterminous owners deriving title from a common grantor, and the lands claimed by the plaintiff adjoin lands of the defendant, the question is resolved into one as to the location of the boundary line between such coterminous owners. Barfield v. Birrick,151 Ga. 618 (108 S.E. 43); Peeples v. Rudulph, 153 Ga. 18 (111 S.E. 548).

After a verdict and decree for the plaintiff, the defendant can not under the general grounds of a motion for new trial call into question the description of the land claimed by the plaintiff in her petition. Such attack, if made, must be by general demurrer or motion to dismiss in the nature of a general demurrer before verdict. Harbin v. Hunt, 151 Ga. 60 (105 S.E. 842).

A boundary line acquiesced in by coterminous owners and their possession regulated by it for twenty or more years is conclusive upon the parties and those claiming under them. Watt v.Ganahl, 34 Ga. 290. Where such boundary line between coterminous owners is unascertained or disputed, it may be established by agreement accompanied by possession, or it may be established by acquiescence by acts or declarations of the adjoining owners as provided by the Code, § 85-1602. Farr v.Woolfolk, 118 Ga. 279 (45 S.E. 230); Hatch v. Miller,179 Ga. 630 (176 S.E. 631). When a line has been located and established by seven-years' acquiescence as provided by the Code, § 85-1602 the line thus located and established is binding on the grantees of the coterminous owners. Osteen v. Wynn, 131 Ga. 209 (4) (62 S.E. 37, 127 Am. St. R. 212); Gornto v. Wilson,141 Ga. 598 (81 S.E. 860). In this case there was ample evidence, if believed by the jury (as it appears to have been), to authorize a finding that Richard Tucker and Mrs. M. J. Persons, predecessors in title of the plaintiff and the defendant, had recognized an old rail fence as their boundary line for many years, and that such line had been acquiesced in by the predecessors in title of the plaintiff and the defendant for more than twenty years.

"Disputed lines between adverse claimants of land, and questions of where old fences stood in the past, and how long they stood in certain localities, are peculiarly questions of fact for the jury." Shiels v. Lamar, 58 Ga. 591. In the determination of the boundary between two tracts of land the jury are not obliged to govern their findings by recent surveys rather than by evidence of an old rail fence recognized by the former owners as the boundary line. Roberts v. Ivey, 63 Ga. 622. The correct location of the boundary line in this case was a question of fact for the jury, and their verdict was amply supported by the evidence.

2. Grounds 1, 2, and 3 of the amended motion for new trial complain of the admission of testimony by H. R. Hall, John Wood, and J. F. Norris, in regard to the location and existence of an old rail fence, claimed by the plaintiff to be the boundary line, and cultivation by Richard Tucker to the old fence for a period of many years. The testimony was admitted over the following objections: (a) The deeds are the highest and best evidence; (b) parol testimony is inadmissible in an ejectment suit in variance of the terms of the deed; (c) the evidence was hearsay; (d) testimony quoting Tucker was a self-serving declaration; (e) the testimony was parol, to set up an equitable title when no such title was alleged; and (f) it was irrelevant in the absence of an allegation setting up prescriptive title.

In this case the plaintiff holds her lands under the will of her father, Richard Tucker. The deeds to Tucker described the property conveyed only by adjoining landowners. Since the deeds are ambiguous as to the location of any boundary line, parol evidence was admissible to show the location of the line in dispute. Mayor of Chauncey v. Brown, 99 Ga. 766 (26 S.E. 763); Follendore v. Follendore, 110 Ga. 359 (35 S.E. 676);Leverett v. Bullard, 121 Ga. 534 (49 S.E. 591); Thompson v. Hill, 137 Ga. 308, 317 (3) (73 S.E. 640); Union CentralLife Ins. Co. v. Smith, 184 Ga. 158 (190 S.E. 651).

Acquiescence in a boundary line for seven years, by acts or declarations of the adjoining landowners will establish a boundary line (Code, § 85-1602), and actual possession by the respective owners up to the line may show acquiescence in the line. Tietjen v. Dobson, 170 Ga. 124 (152 S.E. 222, 69 A.L.R. 1408). The evidence was admissible as tending to show recognition and acquiescence by the predecessors in title of the plaintiff and the defendant in the old rail fence as the boundary line between their properties for many years; and such evidence would not be inadmissible as tending to show a prescriptive title in the plaintiff, which was not made an issue by the pleadings.

None of the three witnesses quoted Richard Tucker. All were testifying as to the rail fence, when it was built, how long it stood, and as to its location. "Traditionary evidence as to ancient boundaries and landmarks shall be admissible in evidence, the weight to be determined by the jury according to the source whence it comes." Code, § 38-313. In Riley v. Griffin,16 Ga. 141 (60 Am. D. 726), it was held that from the actual necessities of the case boundaries may be proved by hearsay. The testimony of the three witnesses with reference to the rail fence was germane to the issue as to the location of the boundary line, and was not subject to the objections made.

3. In amended ground 4 of the motion for new trial objection is made to the following excerpt from the charge of the court: "She contends that she derived her title to this particular property through the Messrs. Cason, by warranty deed, and that the southern boundary of this deed went to a certain fence which separated her land from land of Mrs. Persons, and she contends that her line went to and included that land down to the fence. She contends, gentlemen, that that has been a recognized line between her and Mrs. Persons, and that she is now claiming that under her deed, ever since it was purchased, and has been cultivating the land until recently up to where the old original fence was, as she contends." The errors assigned are: (a) Because it was confusing, the sole issue being who had paper title to the land involved, and it was not a question of possession or prescriptive title; and (b) it presented an issue not made by the pleadings — prescriptive title.

If the rail fence, which was shown by some evidence to have stood for more than a quarter of a century, was recognized and acquiesced in, during such time as the boundary line, by the coterminous owners, Richard Tucker (predecessor in title of the plaintiff) and Mrs. M. J. Persons (predecessor in title of the defendant), then each of the litigants would be bound by the acquiescence of his or her predecessor in title. "The acquiescence rule in the Code section [85-1602] will in no case create or establish title; but where a proved title, by a fair construction, will embrace the lands up to the line established by acquiescence, then under this section title comes from the source proved, and the acquiescence fixes the dividing line."Veal v. Barber, 197 Ga. 555, 563 (30 S.E.2d 252). There was evidence of acquiescence for more than twenty years by Mrs. Persons and Richard Tucker in the rail fence as the boundary line; and it was proper that the court should submit to the jury the issue of acquiescence. The charge complained of was with reference to a "recognized line" and acquiescence by the predecessor in title of the defendant. The charge was adapted to the real issue, the location of the boundary line between the plaintiff and the defendant, and was not erroneous.

4. In ground 5 of the amended motion, error is assigned on the following charge: "Now, I charge you, gentlemen, if you believe that under the evidence in the case the deeds they received from the Messrs. Cason in this case did include those particular tracts of land, in that event I charge you that it would be your duty to return a verdict in favor of the plaintiffs in these cases, unless you should further believe that the title which Mr. Dye holds covers the same particular property. And in that case the priority of deeds would control and Mr. Dye's deeds are older, and his deed would be older, and he would be entitled to recover the property, provided you find the line of his north boundary is where he contends it is," The objection to the charge is: Because the words, "provided you find the line of his north boundary is where he contends it is," placed a burden on the defendant greater than required by law; the plaintiff's contention being that she acquired title from the common grantors, that no allegation was made that she acquired title by prescription, and that if such charge had not been given, the verdict would have been for the defendant.

We fail to see how this charge could have been harmful to the defendant. The court was instructing the jury on priority of deeds. After charging them that Mr. Dye's deed was older and that he would be entitled to prevail if his deed covered the property, it was not error to add, "provided you find the line of his north boundary is where he contends it is." Since the defendant had admitted possession of the property in his answer, and claimed that he was the owner, under the pleadings and evidence the jury might have found that the defendant was the owner of the property in dispute; but, to do this, they necessarily would have had to find that the line of his property extended to and included the land in dispute. The defendant by his answer and evidence raised the issue as to his ownership of the disputed property, and the charge complained of was not erroneous for this reason.

5. In amended ground 6 error is assigned on the following charge: "Now, you take all the evidence in the case, gentlemen, and go to your room and consider your verdict. These are the papers here, the two at the top, and this one. You will disregard everything else in here except as bearing on these particular tracts of land. You will disregard all these other tracts of land. Don't disregard the will, but disregard all these other tracts of land there. You may go to your room, gentlemen." Movant contends that the charge was error, "because it was confusing to the jury and withdrew from their consideration all the tracts of land involved in the case except the tracts of land that passed under the will of Richard Tucker. The entire lands of Richard Tucker which passed under his will were not in issue."

The court in the charge excepted to gave the jury certain documentary evidence. It is not shown what papers were sent out. It does not appear that counsel offered any objection to the exclusion of documentary evidence, if any was improperly excluded, nor is it shown how the charge was confusing. The ground is not so complete as to be the basis of any ruling on the exclusion of evidence or issues.

6. In ground 7 of the amended motion the "movant contends that the verdict of the jury was unsupported by the evidence . . since the sole issue to be tried in the case was the question as to who had the better title from the common grantor and . . there was no evidence to support the verdict that the sixty-two-acre tract of land was even contiguous to the forty-one-and-one-fourth-acre tract of land, and therefore it would have been a physical impossibility for the land of Mrs. M. J. Persons to have been the adjoining tract of land to the sixty-two-acre tract claimed by Ellen Dotson." Extracts from deeds and quotations from the evidence are set out in the ground in support of the contention made. Since this ground attempts to set up a reason why the verdict of the jury was not supported by the evidence, it is a mere amplification of the general grounds.

Each ground of a motion for new trial must be complete within itself, and should plainly and distinctly set forth the error complained of. Fidelity Casualty Co. v. Geiger, 142 Ga. 438 (83 S.E. 92); Daniel v. Schwarzweiss, 144 Ga. 81 (86 S.E. 239); Pepper v. Pepper, 169 Ga. 832 (152 S.E. 103);Price v. State, 170 Ga. 294 (3) (152 S.E. 572); Jones v. Jones, 196 Ga. 492 (26 S.E.2d 602); Harrison v. Lovett, 198 Ga. 466,473 (31 S.E.2d 799). "Grounds of a motion for new trial which are vague, indefinite, and uncertain will not be ruled upon by this court." Dorsey v. Dorsey, 189 Ga. 662 (7 S.E.2d 273).

In the above ground it is not shown how or in what way it is material whether or not the 62-acre-tract is contiguous to the 41-1/4-acre tract, nor is it shown how or in what way the latter tract is in any way related to the issue as to the location of the boundary line, and no injury or harm to the defendant is shown in this ground. Therefore it presents no issue for determination by this court.

7. Ground 8, contending that the verdict is contrary to the evidence, is an amplification of the general grounds. In this exception the movant contends that the deed from the common grantor to him was given before the deed under which the plaintiff claims, that the deed sets forth in certain terms the definite boundary line between the plaintiff and the defendant, and that the undisputed evidence shows that the fence was on the line called for by metes and bounds in the deed under which the defendant holds. (Evidently the plaintiff in error is referring to the deed from the common grantors to his predecessor in title, since his deed from Mrs. Persons gives a description of the land conveyed to him, only by adjoining landowners.) He claims that the only evidence which would vary the line as claimed by him was evidence of prescription and cultivation; and that this evidence was inadmissible, since the plaintiff was basing her action on her alleged superior title to the land involved under a deed from the common grantor, and made no allegation of prescription or cultivation.

In division 2 of this opinion we have ruled that the evidence complained of by the defendant was not evidence of prescription, but was evidence tending to show the location of the boundary line, and was admissible. The evidence was sufficient to establish the line claimed by the plaintiff.

Judgment affirmed. All the Justices concur.