Opinion
16610.
JUNE 15, 1949. REHEARING DENIED JULY 14, 1949.
Petition for injunction, etc. Before Judge Nichols. Chattooga Superior Court. February 7, 1949.
Maddox Maddox, for plaintiff.
Thomas J. Espy Jr. and A. A. Farrar, for defendants.
The petition set forth no cause of action, and the trial judge did not err in sustaining general demurrers thereto.
No. 16610. JUNE 15, 1949. REHEARING DENIED JULY 14, 1949.
John W. Hicks brought an equitable action against C. R. Downey, E. P. Jacobs Sr., and E. P. Jacobs Jr., a partnership doing business as Summerville Lumber and Coal Company, and Robert L. Smith and Gladys Smith. The petition alleged that the plaintiff, on April 22, 1946, purchased from the partnership a described tract of land, the east boundary of which was described as follows: "Beginning on the west side of proposed extension of Robert Street, where the Gladys Smith north line intersects with said street; thence due north along said Robert Street to the north line of Land Lot No. 4"; that at the time of the purchase, Robert Street, referred to in the description, had not been laid out, but it was contemplated that this street would extend through the lands owned by the partnership; that one Farrar, an agent of the partnership, approached the petitioner with reference to purchasing the lands described in the petition, and the petitioner and Farrar "went to the lands belonging to the defendants and the lines surrounding the property proposed to be sold to petitioner were actually pointed out to him by the said Farrar and Downey, and immediately after the execution of said deed that he went to said lands in company with the said Farrar and Downey, and they actually staked out on the ground the location of the proposed extension of Robert Street and the east boundary line of the lands sold to petitioner, and on account of said acts they are estopped from denying that said line is the east boundary line of the lands so sold to petitioner; that the partnership owned the property to the east of the land proposed to be sold to the petitioner, so that the east line so marked out on the ground was through the lands of the partnership; that thereafter the petitioner purchased "said lands from said defendants, paying therefor the sum of $500, and in doing so he was acting upon the representations and statements of the said Farrar and the said Downey that the line so pointed out, and afterward, as above alleged and set forth, marked and staked out on the ground by the said Downey and Farrar, and that when [he] accepted said deed he did so in the belief that the same conveyed said lands."
The petition further alleged that, after the petitioner purchased the lands, "he entered into actual possession of the same and into actual possession of the lands hereinafter referred to, said possession being evidenced by a pasture fence built thereon and which was occupied by cattle belonging to petitioner and by actual cultivation"; that after the purchase, the petitioner immediately had his deed recorded; that thereafter, some time in the year 1947, the defendants Robert L. Smith and Gladys Smith claimed to have purchased certain lands from the partnership, which they claim includes approximately 22.6 acres of land which the petitioner "insists was pointed out to him by the said Farrar and Downey as being part of the lands so conveyed to him"; that the "said 22.6 acres lie east of the line beginning on Robert Street and extending north 2,243 feet to the original land lot line of Lot No. 4; thence east 672.6 feet to the northeast corner of said Lot No. 4; thence south along the District line 339.7 feet; thence southwesterly to the beginning point 2046.7 feet"; that after the purported sale to the Smiths, they took possession of the 22.6-acre tract, claiming it as their own and refusing to permit the petitioner to exercise any rights of ownership over the land, and they are continuing to do so; that, since Downey and Farrar actually pointed out to the petitioner the east line of the lands purchased by him, and at the time the partnership owned the adjoining lands, and petitioner actually went into possession thereof, the partnership is bound thereby and estopped from denying that said line so pointed out is the east line of the lands conveyed to the petitioner, and the Smiths, at the time they claimed to have purchased, had notice of the petitioner's claims to the land on account of his actual possession and occupancy thereof, and if they have a deed to the lands they purchased with knowledge and notice of his claim; that the acts of the Smiths constitute a continuing trespass on the petitioner's lands; and that he has no adequate remedy at law.
The prayers of the petition were: (a) for process; (b) that the Smiths be enjoined and restrained from trespassing on the 22.6-acre tract of land; (c) that the petitioner recover the 22.6-acre tract of land; (d) "that should the court determine that it is necessary for petitioner to maintain his action and to recover the property described herein, that the deed of the Summerville Lumber Coal Company to petitioner, attached hereto as Exhibit `A,' be reformed, that the description thereof be reformed so that the east line of the description in said deed be the same as the east line of the 22.6-acre tract described in said petition, and that said deed include all of said 22.6-acre tract"; and (e) for general relief.
General demurrers to the petition were interposed by the partnership and by the defendants, Robert L. Smith and Gladys Smith. The trial court sustained the demurrers, and to this judgment the plaintiff excepted.
Under the rather vague allegations of the petition, it would appear that the plaintiff claims to have purchased certain property, but in the deed of purchase a described tract of 22.6 acres was omitted from the description. The plaintiff seeks to recover this 22.6-acre tract, which it is alleged lies east of Robert Street, under the theory of the establishment of a disputed boundary by a parol agreement between adjoining landowners; alleging, after the petition was amended, that prior to the purchase the plaintiff and an agent of the sellers "went to the lands belonging to the defendants and the lines surrounding the property proposed to be sold to petitioner were actually pointed out to him by the said Farrar and Downey, and immediately after the execution of the said deed that he went to said lands in company with the said Farrar and Downey, and they actually staked out on the ground the location of the proposed extension of Robert Street and the east boundary line of the lands sold to petitioner." Failing a recovery on the theory of the establishment of a boundary line, the plaintiff seeks reformation of the deed.
The allegations of the petition are insufficient to show the establishment of a disputed boundary line, because (1) the averments of the petition show that the alleged oral agreement was a contemporaneous agreement between the purchaser and seller at the time of sale; and (2) the petition fails to show that the agreement related to an indefinite, unascertained, or disputed line between coterminous landowners. While the petition alleges that the line was staked out "immediately after" the deed was executed, the petition further discloses that the line had, prior to the execution of the deed, been agreed upon; and the staking out of this same line was clearly a part of the same transaction. Accordingly, if an agreement as to a line "immediately after" the execution of a deed might ever be considered valid, upon the theory that it was between coterminous landowners, an agreement such as the present one could be considered nothing more than a contemporaneous agreement.
As stated in Taylor v. Board of Trustees of Glenlock Public School, 185 Ga. 61 ( 194 S.E. 169): "No matter what the oral agreement was as to where the dividing line between the two properties was to be, it was merged into the subsequent deeds, became functus officio when the deeds were executed, and the rights of the parties are based alone upon the descriptions contained in the deeds. Compare Loftis v. Clay, 164 Ga. 845, 848 ( 139 S.E. 668); Keiley v. Citizens Savings Bank Trust Co., 173 Ga. 11, 16 ( 159 S.E. 527); Kennedy v. Kennedy, 183 Ga. 432, 440 ( 188 S.E. 722, 109 A.L.R. 1143). The rule that a parol agreement between owners of coterminous properties that a certain line is the true dividing line is valid and binding if the agreement is accompanied by possession to the agreed line, or is otherwise duly executed, and if the boundary line between the two tracts is indefinite, unascertained, or disputed, has no application to a state of facts in which at the time of the parol agreement there was no disputed line to be agreed upon. Miller v. McGlaun, 63 Ga. 435. The instant case does not deal with an oral agreement between parties who already own adjoining tracts, and who are in disagreement as to the dividing line between them. The parol agreement here involved cannot be binding, because it was not made to settle any dispute with respect to the true line."
Since the oral agreement as to the boundary was merged in the deed, any right or claim that the parties may have with respect to the omitted tract would depend on reformation. Kennedy v. Kennedy, 183 Ga. 432 (supra); Taylor v. Board of Trustees of Glenlock Public School, supra. Such reformation being necessary, any question as to notice (Code, §§ 85-408, 37-115) is not involved, for "ordinarily proof of notice will avail nothing unless a party can couple such proof of notice with proof of a right, title, equity, claim, or interest in the land in controversy; and the difficulty the [plaintiff] faces in this case is proof of any equity or title whatever without seeking a reformation of the deeds." Smith v. Lanier, 202 Ga. 165, 170 ( 42 S.E.2d 495).
The petition is wholly insufficient as one seeking reformation, for the reason that the petition does not attempt to allege that there was any mutual mistake of the parties in the execution of the deed; nor does it allege that there was fraud on the part of one party and a mistake on the part of the other.
For the foregoing reasons, the petition set forth no cause of action; and the trial judge did not err in sustaining a general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur.