Hutsell v. U.S. Life Title Ins. Co.

• Court: Georgia Court of Appeals
• Writing for the Court: McMURRAY; QUILLIAN, C. J., and POPE
• Citation: Hutsell v. U.S. Life Title Ins. Co., 278 S.E.2d 730, 157 Ga.App. 845 (Ga. App. 1981)
• Decision Date: 10 March 1981
• Docket Number: No. 61529,61529
• Parties: HUTSELL v. U. S. LIFE TITLE INSURANCE COMPANY.

Page 730

278 S.E.2d 730

157 Ga.App. 845

HUTSELL v. U. S. LIFE TITLE INSURANCE COMPANY.

No. 61529.

Court of Appeals of Georgia.

March 10, 1981.

Asa Mitchell Powell, Jr., Newnan, for appellant.

Reuben M. Word, Carrollton, for appellee.

McMURRAY, Presiding Judge.

This case involves a suit for shortage of land brought by the grantees, as plaintiffs, against the grantors, the surveyor, and the title insurance company issuing a policy of title insurance insuring the transaction. Attached to the action were copies of the warranty deeds to the two tracts of land, a copy of the survey, and a copy of the owner's policy and a letter from the insurance agent notifying the plaintiffs that under the owner's policy "both tracts of property are insured in the amount of your purchase price. You will also note that the survey has been insured."

Plaintiffs contend that the two tracts should have contained 6.12 acres in accordance with the survey but contained less than 4 acres of land. Judgment was therein sought for $30,000, jointly and severally against all the defendants and that judgment against the defendant title insurance company be also in the amount of 25% of its liability under Code Ann. § 56-1206 (Ga.L.1960, pp. 289, 502; 1962, p. 712).

The owners' policy was executed by the president attested to by the "Senior Vice President, Secretary and Treasurer," and signed by "James H. Bone" as the "Authorized Signature." Under Schedule B the policy did not insure against loss or damage by reason of "(a)ny discrepancies, conflicts in boundary lines, shortage in area, encroachments, overlapping of improvements, or other boundary or location disputes ... (and) ... (a)ny roadway or easement, similar or dissimilar, on, under, over, or across said property, or any part thereof not shown by the public records."

In this appeal we are concerned only with the status of the defendant U. S. Life Title Insurance Company of Dallas. In addition to its answer (denying the claim), its counterclaim (seeking damages and expenses of litigation), and its cross ("action") claim against the surveyor defendant, it also filed a motion for judgment on the pleadings which was denied after a hearing. This defendant then filed its motion for summary judgment attaching the affidavit of the insurance agent, James H. Bone, who issued and signed the policy under "Authorized Signature," with a copy of his contract of employment attached to the affidavit wherein he deposed he had no authority "to amend any company policy without signatures of the company officials." The language of the contract in which the agent's authority was limited reads as follows in limiting his agency relationship to only "title insurance; nor shall the Agent have authority (to) change, alter or amend the terms of any title policy forms supplied by the Company; nor in any way to bind the Company by any representation, promise or otherwise, except in accordance with the terms and conditions of any title policy issued on the forms of the Company."

Thereafter, in consideration of the motion for summary judgment the trial court stated in its order granting same in favor of this defendant that the policy specifically excluded "any claim as to shortage in area such as the one on which plaintiffs here base their claim," and nothing appears to controvert the provisions of the written contract relied upon by defendant as controlling so as to pierce the claim of the plaintiffs, citing Stewart v. Jim Walter Homes, Inc., 229 Ga. 244, 190 S.E.2d 520. Only one of the plaintiffs appeals. Held :

1. The examination of the policy of title insurance as written clearly shows in Schedule B with reference to items not insured against loss that the policy did not insure real property as to its size, which had been conveyed as two tracts, one being 4.54 acres and the other "1.58 acres, more or less." However, the survey referred to in the description did not show "more or less" but showed both tracts as 6.12 acres "(TOTAL)." By letter to the insured with the policy enclosed, the agent James H. Bone added that "the survey has been insured," which is in direct conflict with the language in Schedule B of the policy included with the letter as therein stated. Movant has now added the agency contract between the insurer and its agent Bone which appears not to give him any authority to change "the terms of any title policy forms...