Gauker v. Eubanks

• Decision Date: 06 September 1973
• Docket Number: No. 27943,27943
• Citation: 199 S.E.2d 771,230 Ga. 893
• Parties: Margaret GAUKER v. Shelton M. EUBANKS.
• Court: Georgia Supreme Court

Page 771

199 S.E.2d 771

230 Ga. 893

Margaret GAUKER v. Shelton M. EUBANKS.

No. 27943.

Supreme Court of Georgia.

Sept. 6, 1973.

Syllabus by the Court

1. There was no mutual mistake of the parties as to the description of the property conveyed by the deed.

2. The appellant did not obtain title by adverse possession to the strip of land in dispute.

3. Acquiescence cannot be used to establish title in disregard of a definite boundary line fixed by deed.

4. The defense of laches was not available to the appellant.

Lester & Lester, James L. Lester, Augusta, for appellant.

Lanier, Powell, Cooper & Cooper, Roger W. Dunaway, Jr., Augusta, for appellee.

GRICE, Presiding Justice.

This appeal is from a judgment granting the appellee's motion for summary judgment and vesting him with fee simple title to described land. The judgment resulted from a quia timet proceeding instituted by the appellee Shelton M. Eubanks against the appellant Margaret Gauker in the Superior Court of Richmond County.

The tract of land involved fronts 75 feet on a street and extends back 98.8 feet in depth, but only 16 feet of the depth is in controversy here. The controlling issue is whether the tract extends from the right-of-way of the street or from the southern edge of the pavement of the street as it existed in 1947.

The petition alleged that the appellee had fee simple title to the described parcel of land located in Richmond County; that he was the contiguous property owner of the appellant, who claimed a 16-foot portion located along the rear property line of the appellee; and that due to this adverse claim the appellee was being denied the use, enjoyment and possession of his property. The prayers were that a special master be appointed to make a determination of the respective interests of the parties in the property.

The report of findings of the special master was essentially that which follows.

On September 24, 1947, Haywood W. Storey conveyed to the appellant property essentially described as 'beginning at a point 98 feet and 8 inches from the Southern edge of the pavement of Milledgeville Road on the West side of Wheeless Road and extending thence along said Wheeless Road a distance of 200 feet, more or less, to the waters of Rocky Creek.' (Emphasis supplied.)

On February 9, 1948, Storey conveyed to Ambrose J. Schweers by a security deed property essentially described as 'located on the Southwest corner of the intersection of Milledgeville Road and Wheeless Road . . . fronting on Milledgeville Road a distance of 75 feet, more or less, and extending back between parallel lines a distance of 98.8 feet.' (Emphasis supplied.)

On November 3, 1948, Schweers conveyed to himself the property described in the aforementioned security deed of February 9, 1948, pursuant to Storey's default and the foreclosure sale.

On February 28, 1949, Storey and the appellant (formerly Margaret O'Connell Storey) conveyed to Schweers property essentially described as 'located on the Southwest corner of the intersection of Milledgeville Road and Wheeless Road . . . fronting on said Milledgeville Road 75 feet, more or less, and extending back between parallel lines 98.8 feet.' (Emphasis supplied.)

On June 29, 1949, Schweers conveyed to J. F. Poole and Rubye Mae Poole property essentially described as 'located on the Southwest corner of the intersection of Milledgeville Road and Wheeless Road . . . fronting on said Milledgeville Road 75 feet, more or less, and extending back between parallel lines 98 feet, or more or less.' (Emphasis supplied.)

On January 11, 1950, the Pooles conveyed to the appellee property essentially described as 'located on the Southwest corner of the intersection of Milledgeville Road and Wheeless Road . . . fronting on said Milledgeville Road 75 feet more or less, and extending back between parallel lines 98.8 feet, more or less.' (Emphasis supplied.)

The special master also found, pursuant to stipulation, that on September 24, 1947, and to the present time Milledgeville Road was and is a 50-foot right-of-way.

The special master found and recommended to the court that the appellant had divested herself of all right, title and interest in and to the 16-foot by 75-foot strip of land in question here and that the appellee was vested with a fee simple title thereto.

On April 7, 1972, the same day the report of the special master was filed, it was made the order of the trial court.

Thereupon, the appellant filed an exception to the report of the special master, alleging in substance that the special master had overlooked an error in the description of the 1949 deed from her and her former husband to Schweers.

The appellant urged by amendment that the special master had also overlooked that a dispute arose between the parties concerning the location of the property line in 1964; that in 1970 the appellee built a concrete block retaining wall along what she contended was the true property line; and that the appellee had thereby acquiesced for more than seven years and established what she claimed was the correct property line.

She also demanded a trial by jury.

The appellee filed a motion for summary judgment upon the ground that there was no genuine issue as to any material fact and that he was entitled to judgment as a matter of law.

The appellant filed affidavits in response, reiterating the facts alleged in her amended exception, and by another amendment sought to raise the defense of laches.

After a hearing the trial court granted the appellee's motion for summary judgment and ordered that he be vested with fee simple title to the property described above.

Upon appeal Mrs. Gauker contends that there are issues of fact, to wit: a mistake in the description of the 1949 deed, adverse possession, acquiescence and laches, which were overlooked by the trial court, and that it therefore erroneously granted the appellee's motion for summary judgment.

1. We first deal with the contention of the appellant that there was a mistake in the description of the 1949 deed from her and Storey to Schweers.

For a mistake to have been a defense in this regard it must have been common to all the parties to the transaction; or it must have been induced by the fraud or concealment of the other party. See Scurry v. Cook, 206 Ga. 876, 59 S.E.2d 371.

Here, however, the appellant alleged only that she was mistaken as to what the deed contained. There was no allegation whatever of a mutual mistake of the parties or of any fraud, misrepresentation or concealment of fact.

Furthermore, it is well established that 'The mistake of the parties to a deed cannot be rectified to the injury of an innocent third party who has parted with his money or extended credit on the faith of the deed . . .', as the appellee did here. Malette v. Wright, 120 Ga. 735, 742, 48 S.E. 229, 232.

Also, if the deed did not properly describe the property the appellant intended to convey, it was her duty to read it and discover this before she signed it. See Whitfield v. Whitfield, 204 Ga. 64(1), 48 S.E.2d 852. Thus she is not entitled to the defense that she did not know the contents and nature of the deed (Sutton v. McMillan, 213 Ga. 90(2), 97 S.E.2d 139); nor can she introduce extrinsic evidence to show that her intention was other than what the deed indicated (Smith v. Lanier, 202 Ga. 165(2), 42 S.E.2d 495).

This enumeration, for either of the foregoing reasons, is therefore without merit.

2. The next point contended by the appellant to raise questions of fact to be determined by a jury is that she obtained title to the strip of land in question by adverse possession.

The appellant relies upon the case of Thompson v. Fouts, 203 Ga. 522(2), 47 S.E.2d 571. It, however, states as follows: "Adverse possession is usually a mixed question of law and fact-whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide.' Paxson v. Bailey & Park, 17 Ga. 600.' (Emphasis supplied.)

The important factor here, however, is that the appellant is claiming adversely to her own deed-the 1949 deed executed jointly by her and Storey to Schweers. Thus this contention is controlled by the rule established in Malette v. Wright, 120 Ga. 735, 48 S.E. 229, supra.

In that case the court, at page 741, 48 S.E. at page 232, stated as follows: 'It will be remembered that the alleged adverse possession was that of the grantor. The provisions of the Civ.Code 1895, § 3931 (present Code § 85-408), can have no application to the case of a party who is endeavoring to avail himself of such possession in the face of his own warranty deed, spread on the record, as against an innocent purchaser for value, and without notice. Such a possession remaining with the grantor, and never surrendered, is to be deemed to be held under his grantee, and is not adverse to his title. Jay v. Whelchel, 78 Ga. 786, 789, 3 S.E. 906.' See also, Rimes v. Floyd, 168 Ga. 426, 148 S.E. 86; Stepp v. Stepp, 195 Ga. 595(5), 25 S.E.2d 6.

Thus, the appellee became an innocent purchaser for value without notice of the appellant's claim in 1950 when he purchased the property from the Pooles. The dispute first arose between him and the appellant during May of 1964 after he erected a fence in April of 1963. The earliest possible notice he could have had that the appellant was claiming adversely to her warranty deed was in April of 1963, at...