1. Where the location of a dividing line between coterminous landowners was a controlling question in a suit to enjoin the cutting of timber, and where both the plaintiff and the defendants sought to show the location of the dividing line by reference to descriptions that were set forth in security deeds, the charge of the court, that a security deed to land conveys the legal title to the vendee, and that the right of the vendee cannot be affected by subsequent acts of conveyance of the vendor to third parties, stated a correct principle of law applicable to the pleadings and evidence.
2. The evidence for the plaintiff showing that, according to a survey based on an old deed in the defendants' chain of title, the dividing line ran from the head of a branch in a northeasterly direction, and the uncontroverted evidence for the defendants showing that the predecessors of the respective parties, not being able to locate the line referred to in the old deed, agreed upon a line running due east from the head of the branch, which agreed line was acquiesced in from 1914 until the filing of the present suit, the verdict for the plaintiff was unauthorized and the trial judge erred in not granting a new trial.
No. 15651. JANUARY 8, 1947. REHEARING DENIED FEBRUARY 7, 1947. Dudley H. McDowell filed in Early Superior Court, against Ralph Hutchins and Mrs. W. C. Jordan, a petition which as amended sought to enjoin the cutting of timber on a triangular shaped tract of land containing 14.85 acres. A controlling question is as to the location of the dividing line between coterminous landowners. The plaintiff had a written title to 121.98 acres, being *Page 2 the southern portion of land lot 361 in the 28th district of Early County, and the defendant had a written title to 80 acres in the northern portion of said lot. The plaintiff and the defendants claim title to their respective tracts from a common source, to wit, Anthony Hutchins. The plaintiff claims title to his tract by virtue of deeds (1) from the heirs at law of Anthony Hutchins to Joseph Freeman; (2) from Joseph Freeman to the Federal Land Bank of Columbia; (3) from the Federal Land Bank to T. B. McDowell; (4) from T. B. McDowell to the plaintiff. The defendants claim title to their tract by virtue of a deed from the executrix of the estate of Anthony Hutchins to W. C. Hutchins, who was the father of the defendants, and who died intestate, they being his heirs at law.
The petition alleges that the dividing line in question started at a point on the west line of the land lot at "the point of intersection of said line by Herrod's Creek, running thence up said creek to the point where Grimsley's Spring Branch empties into said creek, running thence up said Grimsley's Spring Branch to its head, thence east to a road which is identified in the defendants' chain of title as the `Old Saw Mill Road,' thence along the said `Saw Mill Road' to the point where it crosses the east line of said lot."
The deed in the defendants' chain of title from the executrix of Anthony Hutchins to W. C. Hutchins conveys 80 acres off of lot 361, and sets out that the property conveyed therein is more fully described in a deed executed October 27, 1842, from Lazarus Goolsby to James Glenn. The description in the deed dated October 27, 1842, recites that the boundary line, after reaching the branch head, runs "due east to the road running from the sawmill to the public road, from thence [along?] said road to where it crosses the eastern line of said lot."
The defendants admitted in their answer that the above allegation in the petition is substantially correct, except the description of the line from the head of "Grimsley's Spring Branch." As to this portion of the boundary line, the answer avers among other things the following: In 1914, Joseph Freeman, the predecessor in title of the plaintiff, and W. C. Hutchins, the predecessor of the defendants, not being able to locate the old sawmill road, referred to in the deed executed in 1842, agreed that the line separating their respective lands should run directly east from the branch head *Page 3 to the east lot line. Joseph Freeman cut all the sawmill timber on the south side of the agreed line; and on January 27, 1916, he executed a security deed to George M. Foreman. The description in this security deed recites that the boundary line of the property therein conveyed, after reaching the branch head, runs "east to east lot line of said lot." Subsequently on January 10, 1925, Freeman executed a security deed to Federal Land Bank of Columbia, and recited therein that the land was the same as that conveyed by security deed to Foreman. It is insisted that no title went into Federal Land Bank from Joseph Freeman to any lands north of the straight line running east to the east lot line from the head of the branch. In 1927, W. C. Hutchins and Joseph Freeman, recognizing their agreement, surveyed the dividing line and ran it as had been agreed by them in 1914. Each of the predecessors in title recognized the agreement continuously from 1914, by clearing lands and cutting timber up to the agreed line, for more than seven years.
On the trial several maps were introduced in evidence, and there was testimony relating to various surveys that were made in seeking to locate the true dividing line. The surveys for the plaintiff purported to follow the old sawmill road referred to in the deed executed in 1842, after reaching the branch head, while those for the defendants ran directly east to the east lot line.
Upon the question of an agreed line, W. H. Chandler testified in part for the defendants: He helped to run a line across lot 361. Joseph Freeman and W. C. Hutchins were present. They said they wanted to establish a line. Claude Brownlee testified: He farmed with W. C. Hutchins in 1924 and 1925. Mr. Freeman and Mr. Hutchins said that the line ran from the head of Grimsley's Spring Branch to the east lot line. Ralph Hutchins, one of the defendants, testified: When he first remembered the lot in question, Joseph Freeman and W. C. Hutchins were in possession of it. W. C. Hutchins cultivated the land lying north of a straight line running east from Grimsley's Spring Branch to the east lot line in his lifetime, and for the past 15 years the witness worked it. Joe Freeman cut up to the line and stopped on the south side. W. C. Jordan, testified for the defendants: W. C. Hutchins and Joseph Freeman agreed on the line from the spring head east to the east lot line. In 1919 they said that the line ran straight from the branch head to the east line of that lot. *Page 4
The plaintiff did not offer any evidence to rebut the above testimony. Pat Nobles, a witness for the plaintiff testified on cross-examination: He worked for W. C. Hutchins in 1914 or 1915 and remembered when the land was surveyed and a line run through lot 361 by W. C. Hutchins and Joseph Freeman. They ran a straight line from the head of the branch, east to the east lot line. Mr. Freeman had just bought the land. Talmadge Driver, a witness for the plaintiff, testified on cross-examination: He worked for Joseph Freeman at a sawmill on lot 361 in 1927. "Q. When Mr. Joe Freeman cut that timber he cut up as far as the straight line running from Grimsley's Spring Branch leading east? A. That is where he stopped. I don't know that was on his line. I know when they got there to that line they stopped." Interrogatories of J. G. White for the plaintiff, which were read to the jury, stated in part: "I heard Will Hutchins some [time] ago, I do not remember the date, run a line east from the head of Grimsley's Spring Branch to the east line of lot number 361. I don't know whether Joseph Freeman had anything to do with it, or agreed to it or not . . . Joseph Freeman had a sawmill set up about the head of Race Branch . . and cut timber on lot 361. He did not cut the timber north of a line which would run approximately east from the head of Grimsley's Spring Branch."
The jury returned a verdict for the plaintiff. The defendants' motion for a new trial as amended was overruled, and the case comes to this court upon the defendants' exceptions to that judgment. 1. The only special ground of the motion for new trial complains of the charge: "A security deed to land conveys the legal title to the vendee, and the right of the vendee can not be affected by subsequent acts of conveyance of the vendor to third parties. But the vendor has such an equitable interest in the premises as that he may create a valid second security deed, or lien, subject to the paramount right of the original grantee to have all the land appropriated to the payment of the debt." Exception is taken to this instruction, on the ground that "It was not applicable to the evidence in the case, the issues, nor the pleadings in the case." *Page 5
The above criticism is without merit. Immediately before giving the instruction complained of, the court charged: "If the said Joseph Freeman made and executed to George Foreman a security deed as alleged by the defendants in 1916, soon after making the agreement to treat a straight line from the head of Grimsley's Spring Branch to the east lot line of said lot, and in his security deed described the straight line as being a part of his northern boundary line of his lands, and then subsequently thereafter executed another security deed, as contended by the defendants, to the same identical land, and if this appears to be ascertained from the security deeds themselves, then even though there had not been any agreement at all between the parties as to the `straight line,' the Federal Land Bank could not have and did not acquire any title to any land north of the said straight line and could not have conveyed a good title to the plaintiff in this case. And if you believe the contention of the defendants in this case, under the rules given you in charge, believe that there had been a continuous, undisputed, agreed line from then on, then you would find in favor of the defendants."
Both the plaintiff and the defendants sought to show the location of the dividing line by reference to descriptions that were set forth in security deeds which were introduced in evidence. In the circumstances, the instruction complained of, which was substantially in the language contained in former decisions of this court dealing with the nature of the title of a grantee in a security deed and the remaining rights of the grantor therein Cook v. Ga. Fertilizer Oil Co., 154 Ga. 41 (2), 113 S.E. 145; Chason v. O'Neal, 158 Ga. 725 (2),124 S.E. 519), was not harmful error for any reason assigned.
2. The next question is whether the evidence was sufficient to support the verdict for the plaintiff. The uncontroverted evidence showed that the plaintiff's predecessor in title purchased the southern portion of lot 361 in 1914, at which time the defendants' predecessor was the owner of the northern portion of the lot. The defendants contended in their answer that the predecessors of the respective parties, not being able to locate a sawmill road referred to in an old deed, agreed upon a straight line running east from the head of Grimsley's Spring Branch to the east lot line as constituting the dividing line, and that the straight line was acquiesced *Page 6 in as the dividing line for more than seven years, and was recognized in subsequent deeds. In this connection, the court properly instructed the jury that, if they believed the contention of the defendants that there had been a continuous, undisputed, agreed line from then on, then they should find in favor of the defendants.
"An unascertained or disputed boundary line between coterminous proprietors may be established either (1) by oral agreement, if the agreement be accompanied by actual possession to the agreed line or is otherwise executed; or (2) by acquiescence for seven years, by acts or declarations of owners of adjoining land, as provided by the Code, § 85-1602." Bradley v. Shelton, 189 Ga. 696 (4) (7 S.E.2d 261), and cases cited.
In the present case, there was evidence that the boundary line was uncertain and unascertained, and that shortly after the purchase by the plaintiff's predecessor in 1914 he and the defendants' predecessor entered into a parol agreement establishing the line at the location now claimed by the defendants, and that the plaintiff's predecessor, in pursuance of this agreement cut timber on his land up to the agreed line, and also in subsequent deeds recognized the agreement. There was also evidence that the agreed line was acquiesced in until 1927, at which time the predecessors of the plaintiff and of the defendants had the line surveyed in accordance with the agreement.
There was conflicting evidence, based on descriptions contained in prior deeds, on the question whether the true dividing line was at the location now claimed by the plaintiff or at the location claimed by the defendants. However, the evidence for the defendants, showing an agreement as to the dividing line between the predecessors of the respective parties, which evidence was not rebutted by any testimony introduced by the plaintiff, the verdict for the plaintiff was unauthorized, and the trial judge erred in not granting a new trial.
It is insisted in the brief of counsel for the plaintiff that the verdict should be upheld, for the reason that the defendants admitted in their answer that the line contended for by the plaintiff was substantially correct until 1927, and therefore since a security deed executed by the plaintiff's predecessor in 1925 described the property by reference to a plat made by H. H. Grimsley, a surveyor, on November 29, 1924 (which plat was introduced in evidence and *Page 7 shows the line to be at the place contended for by the plaintiff), the plaintiff's predecessor did not have such an interest in the land in 1927 as would authorize him to agree with the defendants' predecessor upon the location of the dividing line.
The admission was stricken from the answer by amendment, and in lieu thereof it was alleged: that in 1914 the predecessors of the respective parties, not being able to locate the old sawmill road referred to in the deed of 1842, agreed that the line separating their lands should run directly east from the branch head; that the plaintiff's predecessor acquiesced in the agreement by thereafter cutting sawmill timber only on the south side of the agreed line, and recognized the agreement by designating the agreed line as the northern boundary of his property in subsequent security deeds; that in 1927 the respective predecessors of the plaintiff and the defendants further recognized their agreement by having a surveyor to run the dividing line east from the branch head in accordance with the dividing line that was agreed upon in 1914; and that the agreed line had been acquiesced in by the respective parties and their predecessors from 1914 until the filing of the present suit.
The admission, having been stricken, can not be availed of by the plaintiff as a solemn admission in judicio, so as to effect an estoppel against the defendants to deny it. Alabama MidlandR. Co. v. Guilford, 114 Ga. 627 (40 S.E. 794); Mims v.Jones, 135 Ga. 541 (69 S.E. 824); Florida Yellow Pine Co. v. Flint River Naval Stores Co., 140 Ga. 321 (2) (78 S.E. 900); McConnell v. Gregory, 146 Ga. 475 (91 S.E. 550). The uncontroverted testimony on behalf of the defendants in support of the allegations of the amended answer demanded a finding that the stricken admission had been satisfactorily explained. Furthermore, the security deed in question described the property, not only with reference to the aforesaid plat, but also by reference to a prior security deed executed January 27, 1916, by Joseph Freeman, the plaintiff's predecessor, to George M. Foreman. The description in the Foreman deed fixes the line as running from the head of the branch "east to the east line of said lot," and the Grimsley plat relied on by the plaintiff is not conclusive as to how the line runs. It shows the mouth and head of Grimsley's Branch as being in lot 361, and the line from the branch head appears to be prolonged in two directions, one running northeasterly to the lot line and the other running *Page 8 due east to the lot line. In these circumstances, if the line be treated as running from the head of the branch due east, the plat would be consistent with the Foreman deed; and because of the ambiguity in the plat as to the direction of the line from the head of the branch, the line can not be conclusively determined as running in a northeasterly direction to the lot line. Consequently, the plat does not constitute evidence rendering unreasonable or impossible, as contended by the plaintiff, the alleged agreement in 1927 between the respective predecessors of the plaintiff and the defendants.
Judgment reversed. All the Justices concur.