Hardy v. Brannen

• Decision Date: 15 July 1942
• Docket Number: 14165.
• Citation: 21 S.E.2d 417,194 Ga. 252
• Parties: HARDY v. BRANNEN et al.
• Court: Georgia Supreme Court

21 S.E.2d 417

194 Ga. 252

HARDY v. BRANNEN et al.

No. 14165.

Supreme Court of Georgia

July 15, 1942

Syllabus by the Court.

1. Plaintiffs' title to the land, for recovery of which their suit in ejectment was brought, having been established and defendant having under the evidence failed to prove his claim of title based on adverse possession and acquiescence in dividing line and on the question of title, there being no other verdict that could be sustained, the trial judge properly directed the verdict for the plaintiffs.

2. No error shown in the grounds of motion for new trial, all of which are controlled on the question of title by what is said in the first division of the opinion.

In 1915 and previously Cecil W. Brannen owned and was in possession of a tract of land in Bullock County, consisting of two hundred and ninety acres. In September of that year the county surveyor made a plat of land, and in October of the same year Brannen conveyed the tract, by deed to secure debt, to Chickamauga Trust Co. This plat was by reference made a part of the deed, and together they were recorded. The land was described as in accordance with the metes and bounds fixed and marked on the plat. In April, 1919, Brannen purchased from Oliff another tract of land containing 6.81 acres. This was conveyed to him by deed, and at the time Brannen had a plat of it made by the county surveyor and this deed and plat were duly recorded. This tract adjoined the 290-acre tract but was not included in the conveyance to Chickamauga Trust Company. A fence enclosed the entire tract including that last purchased, and Brannen through tenants remained in possession until February, 1932, when he died. When this fence was built does not appear. There was no reference to the enclosure, and no other identification of the tract conveyed to Chickamauga Trust Company, or in other conveyances to be later mentioned, except as already stated by reference to the recorded plat of the 290-acre tract. In June, 1933, the Reserve Loan Life Insurance Company, the holder of the security deed conveying the 290 acres foreclosed it and became the purchaser. The sale of the land under foreclosure was advertised and made according and by reference to the plat, and the conveyance in pursuance of the sale was so made. There were subsequent sales and conveyances of the land, in which it was referred to as 'more particularly described by a plat of said lands made by John E. Rushing September, 1915, which plat is of record,' etc., this being the plat referred to. It was finally so conveyed to J. V. Hardy in October, 1935. Under Brannen and the various subsequent owners, D. A. Edenfield up to this last purchase, had been tenant and in actual possession of all the land (both tracts) under the one enclosure. Hardy then went into possession, soon after which he was notified that the heirs at law of Brannen claimed the 6.81-acre tract. In April, 1941, these heirs filed the present suit in ejectment against Hardy, to recover this smaller adjoining tract, possession of which he had refused to surrender. The basis of Hardy's claim, as stated in his answer, was as follows (Sic): 'Defendant says that for a period of more than seven years by acts and declarations of adjoining landowners has established the said fence as the land line and said fence includes the tract of land in question. The same has been acquiesced in by all parties for more than seven years. The said fence has been established by the predecessors in title of both plaintiff and defendant, and has been acquiesced in for a period of more than seven years, which established it as the true line between the parties.' He later set up by amendment that the acquiescence in the dividing line, which would include as his this smaller tract, had obtained for more than twenty years and had been 'by agreement by defendants' predecessors in title,' and that the line, alleged to be the fence enclosing both tracts, 'had been there for more than thirty years and each subsequent grantee from 1909 to the present time has recognized the said line,' etc. Upon these issues the case went to trial. The plaintiffs proved their case, which was laid in accordance with the facts first stated above. It was further shown, without dispute, that Edenfield, the tenant, when he occupied this smaller tract along with the other after Brannen's death, did so with permission of Mrs. Brannen, but paid no rent, because of the small value of it. Hardy testified, in substance, that he thought he...