McGill v. Dowman
| Decision Date | 14 January 1943 |
| Docket Number | 14323. |
| Citation | 24 S.E.2d 195,195 Ga. 357 |
| Parties | McGILL et al. v. DOWMAN. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 12, 1943.
Syllabus by the Court.
A petition stating a cause of action good at law should not be dismissed on general demurrer, even though equitable relief prayed might not be grantable. Therefore the original ejectment suit in this case, to which there was no demurrer was maintainable, irrespective of whether an equitable amendment was subject to demurrer as showing an adequate remedy at law and no ground for equitable relief.
(a) The question, raised by the demurrer to the amendment, as to whether the amendment showed any basis for an injunction, is moot, since the judgment against the defendants failed to grant an injunction.
(b) There is no merit in the ground of demurrer to the amendment that the plaintiff showed no right to consolidate, with her ejectment suit, against a husband and wife, to recover a disputed strip of land, a subsequent appeal in the same court by the wife alone from a return of processioners, and that such a consolidation would be a misjoinder of parties. This is true, since the husband was already a party defendant in the ejectment case; since the controlling question in both cases was the correct location of the boundary line; and since the plaintiff could not obtain an adjudication of title or a writ of possession in the processioning case.
2. Acquiescence for seven years by the acts or declarations of coterminous proprietors of land, as provided by the Code, § 85-1602, will establish the boundary line between their tracts, without the necessity of a conventional agreement and a line so established is binding on the grantees of such owners.
3. Under the preceding rules and the uncontradicted evidence, the verdict for the plaintiff was demanded on the question of acquiescence for seven years by the defendants' predecessors in title in the boundary claimed by the plaintiff.
4. The verdict for the plaintiff being thus demanded, it is unnecessary to consider the special exceptions to the refusal of a new trial.
In February, 1940, Mrs. Caroline Dowman filed an ejectment suit against Mrs. Josie E. McGill and her husband, Edward J. McGill, to recover a strip of land, of which they had taken possession in 1938, and which was alleged to be a part of the plaintiff's land, described as follows: 'In lot 102, in the 13th Land District of Rabun County, Georgia, beginning at a stake on the line of the Georgia Power Company on the northeast corner; thence along the line of [said] Power Company lands about 300 feet, more or less, to a stake on said line; thence nearly south to a marked maple on the Stambaugh Mining Company lands; thence nearly east along said line to a Spanish oak tree; thence nearly north a distance of three hundred feet, more or less, to the beginning corner; containing two acres, more or less.' The plaintiff claimed this disputed strip under a recorded deed, executed in May, 1925, by James C. Benfield to her husband, Dr. Charles Dowman, who died in November, 1931, and under a recorded deed made to her by his executor in July, 1932, describing the conveyed property in the language quoted.
The defendants answered, claiming title to the disputed strip under a recorded deed executed in May, 1927, by James C. Benfield (the same grantor who had previously executed the deed to plaintiff's husband) to Dr. Hal M. Davison, describing the conveyed property as follows: 'In the thirteenth land district of [Rabun County, Georgia], and being a part of Land Lot 102 in said District, bounded as follows: Beginning at the corner of lands of Charles E. Dowman, and Georgia Railway and Power Company on the Northeast corner; thence a west course 292 feet more or less to a dogwood stake, the corner of Mobley lands; thence along the Mobley line a south course to a black oak on the Stambaugh Mining Company line; thence nearly east along the Stambaugh line to a maple tree a distance of 300 feet; thence a northerly direction to Dr. Charles Downman's line to the beginning corner; containing two acres more or less.'
The defendants further claimed under a recorded deed, executed in October, 1936, by Dr. Davison to Mrs. McGill, describing the property in the language of the deed from Benfield to him.
After the filing of the ejectment suit, Mrs. McGill in July, 1940, filed processioning proceedings to mark the disputed line forming the eastern boundary of her land and the western boundary of Mrs. Dowman's land. In August, 1940, the processioners filed their report, with a surveyor's plat, determining the line as: 'Beginning at a maple, thence running north thirty degrees west two hundred and forty feet to point at west side of large poplar tree; thence north 25 degrees 128 feet, more or less, to contour line of Georgia Railway & Power Company.'
In October, 1940, Mrs. McGill filed in the same superior court a protest and appeal from this return, and in her appeal claimed that the true line was as follows: 'Commencing at the large maple designated on the plat; thence north 23 degrees 30 minutes west 323 feet to what is known as a cottonwood tree * * *; that on the correct line there is a rail fence that was constructed by Mrs. Josie E. McGill after her said tract of land was surveyed and after the lines around the same were pointed out by J. C. Benfield.'
In November, 1940, Mrs. Dowman, plaintiff in the first filed ejectment suit, filed an equitable amendment, setting up the processioning proceedings, and the appeal therefrom pending in the same court; and alleging that the same issue was involved in both cases; that 'a multiplicity of suits and a circuity of actions will result unless the processioning proceeding is consolidated with this [ejectment] case;' and 'plaintiff believes that she will be harassed by groundless and extended litigation on the part of the defendants, and that she will suffer irreparable damage because of delay or otherwise, unless the defendants are restrained and enjoined from proceeding further with said processioning application or otherwise;' and praying for relief accordingly.
To this amendment, Mr. and Mrs. McGill, defendants in Mrs. Dowman's original ejectment suit, filed a general and special demurrer, on the grounds that no basis for equitable relief appeared; that the plaintiff had an adequate remedy at law in the processioning case; that the plaintiff was attempting to consolidate a processioning proceeding, to which Mr. McGill was not a party, with the plaintiff's ejectment suit against both him and his wife, and this, if allowed, would constitute a misjoinder of parties; and that no facts appeared to authorize the grant of a restraining order and injunction. No injunction was granted in the judgment entered on the verdict for the plaintiff. The defendants filed an answer, with contentions as to their title to the disputed strip and boundary line as above stated.
The judge entered orders overruling the demurrers, and consolidating the two cases; to which the defendants excepted pendente lite, and assign error thereon.
On the trial of the consolidated cases, Mrs. McGill moved that the court grant her the right to open and conclude the argument, and the right to strike first in selecting the jury, on the ground that she was the plaintiff in the processioning proceeding, seeking to determine 'the dividing line,' and the burden was on her in that case. She excepted to the refusal of this request, and in her exceptions pendente lite assigns it as error.
The jury found for the plaintiff, Mrs. Dowman, and a judgment was entered, fixing the dividing line as follows: 'Beginning at a marked maple tree on the Stambaugh Mining Company lands between the lands of [Mrs. Dowman and Mrs. McGill], said marked maple being the Southwest corner of the Dowman lands and the Southeast corner of the McGill property; running thence north 30 degrees west 240 feet to a point on the west side of a large poplar tree; thence a straight line north 30 degrees west to the contour line of the Georgia Power Company.' The judgment without granting an injunction, fixed ownership in Mrs. Dowman to the land described in her suit, and fixed the western boundary of her land adjoining that of Mrs. McGill as just quoted; granted a writ of possession in favor of the plaintiff; and awarded costs only against Mrs. McGill.
The defendants excepted to the refusal of a new trial on the general grounds; and on special grounds, as to the admission of evidence (not related to the question of acquiescence by previous owners in the boundary line), to the giving of certain instructions to the jury, and to the refusal to give Mrs. McGill the opening and concluding argument.
As to where the disputed boundary line should be under the respective deeds, there was testimony by the previous common grantor and other witnesses sustaining the plaintiff's contention as to its location. There was evidence for the defendants, that certain trees, as testified and as indicated by photographs in evidence, contained marks, which defendants contended showed the line; that certain stakes now existed; and that these markings and stakes corresponded with the line that they claimed along a fence which they had nailed to these trees; and there were also general statements by witnesses as to what was the correct line, tending to support the defendants' contentions. This evidence was disputed by evidence for the plaintiff.
However there was uncontradicted testimony for the plaintiff that the line as claimed by her had been established by acquiescence for more than seven years, by the declarations and acts of the respective owners of the two tracts and their predecessors in title before Mrs. McGill obtained...
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Smith v. Clemons, 30603.
...predecessors in title of the parties in this case. Such a line is binding on the grantees of such predecessors in title. McGill v. Dowman, 195 Ga. 357(2), 24 S.E.2d 195, and cases cited. It was error for the court to fail to charge the jury explicitly on this question without a request. 3. ......
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Dawson v. Altamaha Land Co., s. 20752
...purpose of marking the same boundary line which is involved in this case. See Coley v. Horkan, 147 Ga. 148, 93 S.E. 81; McGill v. Dowman, 195 Ga. 357, 24 S.E.2d 195; Bishop v. Brown, 138 Ga. 771(3), 76 S.E. 89; Markham v. Angier, 57 Ga. 43, 46; Kendall v. Dow, 46 Ga. The judgments of the tr......
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