Smith v. Lanier

• Decision Date: 17 April 1947
• Docket Number: 15793.
• Citation: 42 S.E.2d 495,202 Ga. 165
• Parties: SMITH v. LANIER et al.
• Court: Georgia Supreme Court

42 S.E.2d 495

202 Ga. 165

SMITH v. LANIER et al.

No. 15793.

Supreme Court of Georgia

April 17, 1947

Syllabus by the Court.

1. There being no evidence tending to show the establishment of an unascertained, uncertain, or disputed dividing line by parol agreement, the trial court erred in charging the jury as follows: 'As unascertained, disputed boundary may be established by parol agreement accompanied by possession. Such agreement is not within the statute of frauds. Such agreement is binding on the grantees of such parties or coterminous owners.'

2. Without reformation, oral negotiations and expressions as to intention can not be shown for the purpose of contradicting the unambiguous terms of a deed. While extrinsic evidence may in a proper case be admitted for the purpose of applying a description to subject matter, it is not competent to show that there was an oral agreement between the grantor and grantee in a deed of conveyance, made prior to or contemporaneously with its execution, fixing a boundary different from that specifically set forth in the deed itself. Accordingly, such evidence should have been excluded on timely objections being interposed.

3. Under the facts in this case, the trial court erred in charging the jury as follows: 'Gentlemen of the jury there is no dispute as to the title of the coterminous landowners, but the dispute is as to where the dividing line is dividing the property of the plaintiff and the defendant Mrs. Lanier.' For a detailed statement of facts pertinent to the rulings here made, see Smith v. Lanier, 199 Ga. 255, 34 S.E.2d 91.

This is an ejectment suit brought by Hoke Smith against Mrs. W. J Lanier. A 210-foot strip of land is in dispute, and the controversy over this strip of land arises by virtue of these facts: On January 7, 1929, J. L. Sapp Sr. died intestate, leaving surviving him his widow, Mrs. Lelia Sapp (now Mrs. W. J. Lanier, the principal defendant), and stepchildren of the widow. Subsequently Mrs. Lanier and the sole surviving stepchildren undertook a division of the real property belonging to the estate, and in furtherance of this division selected three persons to divide the property. After the persons selected had divided the property into two parcels, the widow and stepchildren, on January 17, 1935, executed deeds, the widow executing to the stepchildren a deed to one tract and receiving from them a deed to the other tract adjacent to that conveyed by her. Subsequently the plaintiff in this case acquired from the stepchildren the property lying adjacent to Mrs. Lanier's land.

The controversy is over a 210-foot strip which was included in the deed executed to the stepchildren and in the plaintiff's deed, and which was not included in the deed executed by the stepchildren to the defendant.

On the second trial of this case, the facts developed by the evidence were in all respects similar to those developed on the first trial (Smith v. Lanier, supra), except in one particular. On the second trial, the defendant, Mrs. W. J. Lanier, did not testify that the strip of land in dispute was given to her prior to the execution of deeds made to effectuate a division of the estate of her deceased husband; but she insisted that the 210-foot strip of land in dispute was measured off by her stepson prior to the execution of said deeds, and was supposed to have been included in the deeds received by her, but that, by reason of a mistake in the subsequent execution of deeds, the property in dispute was not conveyed to her in the deed executed to her by her stepchildren and was included in the deed executed by her to her stepchildren.

The jury having returned a verdict against the plaintiff, he filed an amended motion for new trial; and the exception is to the judgment overruling this amended motion.

G. H. Mingledorff, of Douglas, for plaintiff in error.

H. J. Quincey and D. C. Sapp, both of Douglas, for defendants in error.

WYATT, Justice (after stating the foregoing facts).

1. On the previous appearance of this case (Smith v. Lanier, supra [199 Ga. 255, 34 S.E.2d 95]), this court held: 'The undisputed evidence showed that there was no unascertained, uncertain, or disputed line between coterminous landowners. The evidence shows that, when a division of the property was undertaken between the heirs, the defendant, Mrs. Lanier, was dissatisfied with the portion of the land she received; and that, in order to satisfy her, a new and distinct line was established and her boundary extended in order to give her an additional strip of land. Therefore, since it is necessary in order to establish a dividing line between coterminous landowners by parol agreement alone that there shall be a line which is unascertained, uncertain, or disputed (Taylor v. Board of Glenlock Public School, 185 Ga. 61(2), 194 S.E. 169; Miller v. McGlaun, 63 Ga. 435), no directed verdict for the defendants was warranted on the theory that a dividing line had been established by parol agreement. Moreover, 'the only basis for the ruling that such an agreement is not within the statute of frauds is that in instances where it is applicable it does not operate as a conveyance of land, but merely as an agreement with respect to what has already been conveyed. Farr v. Woolfolk, 118 Ga. 277, 45 S.E. 230. In the instant case it was not an agreement with respect to land that had already been conveyed, for the deeds were made subsequently to the alleged agreement.' Taylor v. Board of Glenlock Public School, supra.'

As already stated, the evidence on the second trial was similar to that introduced on the first; and there was no evidence adduced on the second trial tending to show the establishment of an unascertained, uncertain, or disputed dividing line by parol agreement. Accordingly, it was error, requiring the grant of a new trial, for the trial court to charge the jury as follows: 'An unascertained, disputed boundary may be established by parol agreement accompanied by possession. Such agreement is not within the statute of frauds. Such agreement is binding on the grantees of such parties or coterminous owners.'

2. The defendant testified that, prior to the execution of deeds effectuating a division of the estate of her deceased husband, her stepson measured off the 210-foot strip of land in dispute and agreed for her to have this land in addition to that awarded her by parties who had been...