Toms v. Knighton

• Decision Date: 13 November 1945
• Docket Number: 15303.
• Citation: 36 S.E.2d 315,199 Ga. 858
• Parties: TOMS v. KNIGHTON.
• Court: Georgia Supreme Court

36 S.E.2d 315

199 Ga. 858

TOMS v. KNIGHTON.

No. 15303.

Supreme Court of Georgia

November 13, 1945

Syllabus by the Court.

1. Where the petitioner purchased described lands under a parol agreement and paid the purchase price in full, obtaining a deed which by inadvertence of the grantor failed to include a 13-acre tract embraced in the parol purchase, and immediately entered into possession, the perfect equity, equivalent to legal title, thus acquired by him was limited to the portion of the 13 acres actually occupied.

2. Where such purchaser subsequently brought an action to restrain from trespassing upon the 13-acre tract a named defendant who, prior to the time when the petitioner obtained a deed to the land in dispute, had acquired and recorded a deed executed to him by the grantee of the petitioner's grantor, and the petitioner relied upon his own prior possession as notice to the defendant of his rights and title, but the evidence showed actual possession by him only of portions of the tract, the extent of which actual occupancy was not made to appear with such definiteness as would have enabled an enforceable verdict to have been rendered in his favor and a definite judgment thereon entered showing what portions of the premises the defendant should be restrained from trespassing upon, the judgment entered in accordance with the verdict in favor of the defendant must be affirmed.

Thomas Toms filed a petition against R. R. Knighton, which as amended alleged substantially the following: The petitioner is the owner of all that part of land lot No. 284 which lies west of the west arm of Tobennanee Creek in the 8th land district of Quitman County, Georgia. He obtained title thereto by a warranty deed executed and delivered to him by W. A. Cotton, dated March 14, 1935, by payment of the purchase money and actual occupation and possession of the premises from the date of said deed, and by deed from W. A Cotton to the petitioner, dated April 10, 1944, which deed describes in more detail the premises conveyed on March 14 1935. The defendant owns land adjoining and adjacent to the said lands of the petitioner and lying east of the west fork of the said creek. The petitioner entered into possession of his said land on March 14, 1935, cleared it, and has cultivated and worked it since that time, exercising complete and absolute control over the same. The defendant is attempting to take possession of the land and has already started cultivating a part of the same. In the early part of the year 1944 the defendant entered upon the said lands and by threats and intimidation drove the petitioner's laborers and tenants, who were then engaged in preparing the said land for the planting of crops thereon, from the said land and himself proceeded to cultivate the same and use and occupy it until he was restrained by order of court. The defendant is now attempting to build a wire fence around the land and threatens to take it over. His acts amount to a trespass, and he threatens to continue such acts of trespass and will do so unless the petitioner is granted relief. The petitioner does not have an adequate remedy at law, as a suit would be necessary upon each act of trespass and this would result in a multiplicity of suits. The defendant is asserting the right to use and occupy the said land and is attempting to exclude the petitioner from the use and enjoyment of the same. He has by threats and intimidation forced the petitioner's laborers to leave the land and to cease cultivating the same. He will continue to exclude the petitioner and his laborers and tenants from using the land, and threatens himelf to go upon the same from day to day, to plow up the same, to plant the same in crops, cultivate the crops, and harvest them, thus committing continuous acts of trespass from day to day and from time to time, which acts will occasion a multiplicity of suits. The prayers were that the defendant, his agents, croppers, servants, and employees be enjoined from going upon the land for any purpose whatever, from building any fence thereon, and from interfering with the petitioner in any manner in his possession and cultivation of the land, and for process.

The defendant answered, denying the allegations of the original petition as to ownership and possession by the petitioner, and alleging that he was in possession and had started cultivating the land when the suit was filed.

The evidence for the petitioner was substantially as follows: In 1935 he purchased from W. A. Cotton certain described lands, together with that here involved consisting of 13 acres in the northwest portion of land lot 284, described in the petition, and paid the purchase price of $470. Through oversight the deed executed to him on March 14, 1935, and duly recorded on March 15, 1935, did not include the 13 acres in controversy. Nevertheless the petitioner immediately went into possession and plowed the land, helped cut a ditch across the land and cut bushes, and besides cultivating all the land that was not too wet, that is, cultivating four or five acres, and leaving a batch of timber, he enclosed a pasture of three or four acres with a wire fence, the pasture being in the middle of the north part of the tract. He cleared the land and tended it the same year he bought it, and put a fence around it the next year, and most of the fence is still there. He continued to work the land until 1943, when the defendant ran from the land certain negro hands of the petitioner whom he had sent to plow it. The defendant plowed the land in 1943, but by an injunction suit, brought by the petitioner in 1944, was prevented from further trespassing at that time. Because of this litigation the land was not cultivated in 1944, though the petitioner plowed up a small patch in that year. When he started clearing the land originally, he gave the defendant some wood from his acreage in lot No. 284 and it was hauled away by the defendant. About two weeks before the present suit was instituted, the petitioner located in Florida his grantor, who on April 10, 1944, executed to the petitioner a deed, duly recorded on April 14, 1944, conveying the land in lot No. 284, which had been omitted by oversight from the deed of March 14, 1935.

Marion Toms, son of the petitioner, testified that in a conversation with the defendant in 1944 the latter stated to him that he did not doubt that Thomas Toms had bought the land in controversy, but that it was not in the deed executed to him on March 14, 1935.

The defendant claimed under the following chain of title: A deed dated July 9, 1937, from W. A. Ctton, the petitioner's grantor, to Loren Gary, conveying certain lands including the 13-acre tract in lot 284, and duly recorded, though the date is not shown by the record. A deed dated November 15, 1941, from Loren Gary to the defendant, conveying the same lands described in the aforementioned deed to Loren Gary. This deed to the defendant was duly recorded on February 14, 1942.

The defendant testified: 'I bought that land from Dr. Gary on November 15, 1941. When I bought that land in lot 284, which lies in the northwest corner of the lot and west of Tobenannee Creek, it was not in the possession of Mr. Toms. I made a crop on part of it in the year 1943. I think Mr. Toms cultivated it probably in 1942. Mr. Toms was not in possession of it on November 15, 1941, when I bought it from Dr. Gary. Mr. Toms cultivated the land in 1942. It did not look like when I bought it in 1941 that anybody was cultivating it. When I went to look at it, all I saw was lots of bushes and trees. I did not see any cleared land on lot No. 284. If Mr. Toms cultivated it in 1942, I guess there was some cleared land on it. I did not see him clear it up in 1942. Q. If he cultivated it in 1942 and it was not cleared up in 1942, there had to be some cleared land on there in 1941? A. It could have been cleared up the year before, but it was not all cleared. I had to clear lots of bushes the year I worked it. I went all over it the year I bought it. I did not see any fence on it in 1941. I don't remember seeing a ditch that the WPA cut there. There is a ditch there now. I could not say it is the ditch the WPA cut. The only time that I know that Mr. Toms cultivated this land was in 1942. I say he did not cultivate it in 1941. After November 15, 1941? Of course, I didn't have any cause to know about it before that. I don't know whether there was a fence on it before November 15, 1941, that is, when I bought the land. I did not go over there before November, 1941, to see if anybody was cultivating the land. It did not look like anybody cultivated it in 1941 whenever I went there. I did not see anything to make me think it had been cultivated. I could not say that he did not cultivate it in 1940. I was not interested in it at that time. I don't know anything about this land until after I claim I bought it. After I bought this land I did not make a statement to Marion Toms that I thought Mr. Toms had bought this land but it was not in the deed. I did not tell him anything about any trade that I knew had occurred between Mr. Toms and Mr. Cotton. I talked with Marion Toms in 1944, but I had worked the land, made a crop on it, and gathered it. When I went on the land in 1943, I did not see anybody. I did not see any negroes working on that land. None of the land had been broke up on lot No. 284. I don't remember seeing any negroes at all when I went over there in 1943 to start working the land. I waited until then to start working it because I had just got to where I could work it. I think I looked at the record of the deed from Mr. Cotton to Mr. Toms in 1943. Then I started working the land. I did not get around to working this particular part of the...