Leachman v. Patterson

Gunter, Justice,

dissenting. This appeal is from the denial of appellant’s motion for a summary judgment in a dispute over the boundary line between two adjacent tracts of land.

The appellant’s lot will be referred to as the Leachman lot and the appellee’s lot will be referred to as the Patterson lot.

This dispute arises from eight recorded deeds which are set forth in the record. The first seven of these recorded deeds describe the disputed boundary line between the two lots in identical language. The eighth deed, executed ánd recorded last, and purporting to be a "corrective deed,” describes the disputed boundary line in language different from the other seven.

Three deeds in the record describe and convey the Leach-man lot. The first is from Donahoo to Fowler, the second is from Fowler to J. R. Leachman, and the third is from J. R. Leachman to C. C. Leachman. All three of these deeds *801describe the now-disputed boundary line in the same language, namely,: "Thence westerly 752.9 feet.; south 45 degrees, 36 minutes, 10 seconds west;”.

Four deeds in the record describing and conveying the Patterson lot use the same language in describing the now-disputed boundary line. That language is: "thence 752.9 feet, south 45 degrees, 36 minutes, 10 seconds west;”. The first of these deeds was from Donahoo to Fowler, the second was a security deed from Fowler to Donahoo, the third was a quitclaim deed from Fowler to Donahoo, and the fourth was a warranty deed from Donahoo to Patterson, the appellee.

The fifth deed describing and conveying the Patterson lot is the so-called "corrective deed.” It is from Donahoo to Patterson and was executed August 5, 1967, and filed for record August 8, 1967. This deed describes the disputed boundary line as follows: "Thence south 55 degrees west along the said Leachman property a distance of 682 feet, more or less, to an iron stake at the intersection of the Canton Highway, State Route 20 and the Old Ponder Mountain Road;”.

It is thus seen that this last deed changes the course, changes the distance, and changes the monument at the end of the distance along this course from the way this boundary line was described in the four preceding deeds to the Patterson lot.

It is clear to me that this "corrective deed” was not corrective at all. It completely changed the course, the distance, and the monument of this boundary line of the lot as that boundary line had been described in all preceding deeds.

Prior to the 1967 deed from Donahoo to Patterson the boundary line between the two lots was established as the same by all deeds conveying both lots. The 1967 "corrective deed” purported to change this boundary from what it had been under both chains of title up until that time.

Therefore, prior to the 1967 deed from Donahoo to Patterson, Patterson had no color of title to the now-disputed *802area. See LaRoche v. Falligant, 130 Ga. 596 (1) (61 SE 465). There can be no issue as to prescriptive title in Patterson to the disputed area. By the "corrective deed” Donahoo attempted to convey to Patterson a portion of the Leachman lot that had theretofore been conveyed by Donahoo to the appellant’s predecessor in title.

This record clearly shows that the boundary line between the Leachman lot and the Patterson lot is the line set forth in all deeds except the so-called "corrective deed” of 1967.

I would reverse the judgment, directing that summary judgment be entered below for the appellant.

I respectfully dissent.