Segars v. Cornwell, 47861
| Decision Date | 19 February 1973 |
| Docket Number | No. 1,No. 47861,47861,1 |
| Parties | H. M. SEGARS et al. v. John D. CORNWELL |
| Court | Georgia Court of Appeals |
Syllabus by the Court
1. One who purchased land in a proposed subdivision on assurances that a lake would be available to property owners in the tract, although his land was not contiguous to the water line, and who received two deeds, the first specifically stating he was entitled to 'lake privileges' and the second, made to correct certain boundary lines, containing a specific reference to a recorded deed showing streets, lake and recreational areas, may not be barred from use of the lake by refusal to pay an upkeep assessment levied by the successor corporation to the original developer.
2. Where the plaintiff, in an action for malicious prosecution after an arrest on a warrant sworn out by the president of the management corporation with the approval of its board of directors, was bound over to the grand jury on a charge of criminal trespass, and the grand jury returned a no-bill, the fact that the affiant on the arrest warrant was not personally sworn by the justice of the peace does not render the entire proceeding void, where he testified that he signed an oath to the facts stated and that he was under oath. The jury could find under the facts here that the affiant consciously took upon himself the obligation of an oath when he caused the warrant to be issued.
3. The plaintiff proved both general and special damages.
4. One who approves and ratifies a tort is equally guilty with the actor. The evidence authorized an instruction that the corporation and its president, who actually caused the arrest warrant to be served, were joint tortfeasors if the jury should find that a tort had been committed.
This is an action for malicious prosecution in which the plaintiff Cornwell won a $5,000 verdict against Swan Lake Estates, Inc. and its president, Segars. The plaintiff's case was briefly as follows: In May, 1958, he purchased some fifteen acres of land in Henry County from Swan Lake Development Company, a partnership, the deed reciting: 'In addition to the property above described this conveyance includes lake privileges,' referring to a manmade lake apparently constructed in 1957. A second warranty deed dated the following month, reciting it was made for the purpose of correcting the description in the first deed, changed certain lines, not here in dispute, by a few feet, omitted the sentence specifically including lake privileges, but recited that the property was described by reference to a specified plat recorded between the issuance of the two deeds in the Henry County records. This plat specifically showed Swan Lake, a street system, and waterfront land reserved for recreational purposes in connection with the subdivision. The corporate defendant here is the former Swan Lake Cooperative Membership Corporation, itself the successor to Swan Lake Development Company. The subdivision seems to have been beset by difficulties from its inception. Minutes dated August, 1964, reflect receipt by the corporation of legal advice as to what could and could not be accomplished, including the following:
The corporate defendant continued to assess dues for the upkeep of recreational facilities and other expenses. The plaintiff for a time paid a sum equivalent to this assessment, marking his checks as a 'contribution,' and taking the position from the beginning that he was not subject to assessment. He then discontinued the payments. Segars, as president of the corporation, and with the concurrence of the board of directors, thereupon forbade him the use of the lake, and eventually had a warrant taken out placing him under arrest for criminal trespass on the lake property set aside for recreational use. Cornwell hired a lawyer; an indictment was presented to the Henry County grand jury and the latter returned a no-bill. Cornwell then sued for damages, and the defendants appeal from the adverse verdict.
Ray M. Tucker, McDonough, for appellants.
James M. McDaniel, Decatur, for appellee.
1. 'Where a deed or grant refers to a plat as furnishing the description of the land conveyed, the plat itself and the words and marks on it are as much a part of the grant or deed, and control, so far as limits are...
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