Direction of the verdict for the defendants in an action to recover land, and damages by alleged trespass, upheld on review. The plaintiff's exceptions presented no cause for new trial.
No. 14331. JANUARY 13, 1943. H. A. Cliett brought an action of ejectment in the John Doe form against Mrs. Sidney B. Summerford as tenant in possession, to recover nine acres of land, alleged to be part of "tract No. 17 of the J. F. Kelly subdivision" of a plantation. The plaintiff also filed in the city court an action against the defendant and the Metropolitan Life Insurance Company, for damages by trespass on this land. On a petition in equity by the Metropolitan to the superior court, an order consolidating the three cases was entered without objection. Cliett amended his ejectment petition by alleging, that in 1941 he and the Metropolitan, as claimant of the title, had made an agreement for arbitration by selecting N. S. Westbrook, a civil engineer, to make a survey and plat and mark the lines of the disputed property; that the report and conclusion of this engineer were in favor of the plaintiff; and that there was an "accord and satisfaction" between the parties as to such lines, and the Metropolitan "is now estopped" from denying the lines thus fixed. Mrs. Summerford filed an answer, setting up that she held possession under the Metropolitan, and disclaiming any title *Page 258 in herself. The answer of the Metropolitan denied that it was guilty of trespass, as alleged in the ejectment suit, and denied its ejectment of the plaintiff and his ownership or right of possession; and further alleged that it held good title by virtue of its deeds and more than twenty years of quiet, peaceable, and continuous adverse possession.
The court directed a verdict in favor of the Metropolitan Life Insurance Company. Cliett excepted to the refusal of a new trial, assigning error on this ground, and on exclusion of some of his evidence, which he contends would have made issues for the jury on the questions whether the parties agreed on an arbitration by the surveyor; whether his survey and report in favor of Cliett bound the Metropolitan as an award, or as an accord and satisfaction; and whether the Metropolitan acquired a good prescriptive title by twenty years actual adverse possession. The plaintiff also contended that the disputed land was covered by the descriptions in the deeds made to him and his predecessors in title, and was not covered by the descriptions in the deeds of the Metropolitan. Both parties claimed under a previous common grantor, who originally owned a large tract, including both the small tract in dispute and the contiguous land.
On the question whether there was an agreement to arbitrate the disputed line, the letters from the Metropolitan, in evidence, went no further than to show that the company agreed that "a competent surveyor be employed, one suitable to both parties, and that the boundary line be definitely surveyed, with appropriate markers established;" and that the expense of such a survey be divided. The testimony showed that Westbrook was agreed on as the surveyor; that he went with the plaintiff and the defendant's agent to the disputed land; that he made a plat, indicating different lines as respectively contended by the parties, which was in evidence; and that he wrote a letter in the nature of a report to the Metropolitan, with a copy to Cliett, to the exclusion of which report plaintiff excepted. This report stated that he had indicated the situation with "two alternative positions" as to the disputed location of an intersection between the old road bounding the property and another road, as mentioned in the deeds. The first location, as pointed out and contended for by the Metropolitan, he said "there is no evidence on the ground whatever to sustain," although *Page 259 it might have previously been marked by a "field road." The second location, as indicated by an old plat of the entire tract as it existed in 1914, he said he had roughly scaled, but could not determine bearings and measurements on that plat even with a magnifying glass; that they are "not dependable for purposes of relocating lines . . originally sketched on the plat;" that "there are no bearings or measurement calls . . by which the line position of the DeSoto road [the original road in question) as it existed in 1914 . . can be definitely relocated now;" and that there is "no evidence on the ground discernible to indicate that the road once occupied such position as I have indicated and asappears on the filed plat." The surveyor's report referred to a description in a deed to Cliett's predecessor in title as "a bit ambiguous and unusual," although it referred to the original filed plat; and he stated that "it seems logical that the sketched location of the road [in question] at this point must be in error on the plat, since no indications of its actual existence appear on the ground;" that "due to lack of definite measurements to fix the point of junction of the Cobb and DeSoto road as they existed in 1914, and the omission of bearing and measurement on the courses of the old DeSoto road, as reflected by the plat, and in view of the more definite description fixing the junction of these two roads in the Bolton deed to Federal Land Bank [under which the plaintiff claimed], I am of the opinion that the present junction of these two roads closely approximates the position they occupied in March of 1922;" but that "it is probable some change was made at this point in widening these roads after the survey, since a rough check of the present acreage of tract 17 as compared with that of the 1914 survey shows only about 1 acre increase, which, applied to a shift of the present road, would amount to a very little difference in position." The surveyor's report in the letter concluded: "I trust this covers with sufficient clarity toenable the office to dispose of this matter satisfactorily;" and did not purport to make any award, or final determination, or any sort of settlement as to the disputed line.
While the surveyor expressed in his testimony an opinion favorable to the plaintiff, Cliett, based upon reasons similar to those expressed in his report, regarding the location of the DeSoto Road and the intersection as they previously existed, he also testified that *Page 260 he saw the disputed tract in cultivation by W. H. Summerford, the person then in charge of the tract for and under the Metropolitan; and further testified, as to the alleged arbitration and the plat and report made by him: "I don't set upany definite conclusions in there as to what I consider the line;that was not my province down there;" that "on the occasion I investigated this land and ran the lines down there I heard no discussion between [the parties] about any adjustment or anything in connection with it;" that as to whether anybody connected with the Metropolitan Life Insurance Company "told me that any investigation and the survey that I made wouldabsolutely settle that question-he would not have theauthority to do that; the plat was prepared and the report was prepared in the nature of information for them to determine whatthey would do; the plat and report were prepared for the purpose of reporting back; . . the branch office keeps a duplicate, and the other goes into the house office in New York; my general understanding in dealing with the company in things of this kind is that all that stuff had to be submitted to the home office for [the vice-president's] approval, and [his] office was in New York City; nothing is settled in regard to this or like kinduntil it goes up there for their approval;" and that, as to what the plaintiff Cliett said, "I recall what he said only in a general way, that they were trying to reach an agreement on it; that was a good long while after that was made."
In a letter in 1941 the vice-president of the Metropolitan wrote to the plaintiff's attorney: "As to the matter of claiming title to the small triangular tract to which you refer in your correspondence, we do not believe that it was included in the description of the mortgage under which this company acquired title;" and "if the Metropolitan . . through error collected rents from lands owned by others, it is the company's desire to make restitution of such rents to the proper owners of the property." In the same letter it was stated: "It is impossible for us to give you further information on this matter until we have a full and complete report from our Columbia Branch Office, as they have handled the rental of the company's farm;" and "you will hear from us again as soon as we have a report on the facts in this case from our Columbia Branch Office field man who has handled the rental of the company's farm." In a subsequent letter the company wrote to *Page 261 the plaintiff's attorney that it had "received a full and complete report from our Columbia Branch Office, and find that this company has at no time encroached upon lands owned by [plaintiff];" and that "the lands farmed by our tenant and the lands which constituted the Summerford farm over the many, many years embrace the tract to which you raised question in your correspondence."
The plaintiff refers to the exclusion from evidence of a report made by the acting field manager and the assistant field manager of the Metropolitan Company, in the territory where the land was located, made to the company, and obtained under a notice to produce, which related to a suggested settlement of the controversy regarding the disputed tract, and the execution by the company to the plaintiff of a quitclaim deed covering 2.62 acres, but apparently forming no part of the disputed tract, in consideration of plaintiff's payment of $125 to the company. The record does not show any ruling of the court with regard to this evidence or exception to such a ruling.
There was no evidence tending to indicate any acceptance by the company of the surveyor's report, or any agreement between the parties with reference thereto, as a basis for the alleged accord and satisfaction.
As to the respective paper titles of the parties, and whether the disputed tract was included in the description in the deeds to plaintiff's predecessors in title — dependent on the original location of the DeSoto Road as the boundary of the disputed tract, and its intersection with another described road, — the original recorded plat of the whole plantation, as the surveyor stated in his report to the company and testified at the trial, and as the photographic copy of the plat in evidence also indicates, shows no accurately determinable bearings or distances. However, this plat does show the intersection of the roads, as they then existed, north of the present intersection, in accordance with the contention of the Metropolitan. There was also testimony by several witnesses, supporting this contention, that the road then followed an old hedge, up to which the company and its predecessors in title had cultivated the land, and to which the company claimed title under the general description in its deeds. But as to the paper title — there was also testimony by several witnesses for the plaintiff Cliett that the original location *Page 262 of the road in question and its intersection remained approximately the same up to the time of the trial, and that there never was a public road running along a hedge on the border of the tract as cultivated by the Metropolitan and its predecessors in title, according to the contentions of the company and the testimony of its witnesses.
With respect to the company's alleged prescriptive title by more than twenty years actual adverse possession of the disputed nine acres — the company introduced uncontradicted testimony as to such possession. After deeds to its earlier predecessors in title and a deed to William Harold Summerford, and after the company acquired title from him under his security deed made in 1923, and a foreclosure deed made to itself in 1928, there was uncontradicted evidence that Summerford and his wife as tenant remained on the land and continued its cultivation under the wife's tenancy with the permission of the company. Summerford testified that the road in question ran along an old hedgerow before it was "straightened out" to its present location. Also: "When I moved there in 1920, I took charge of this nine acres and started cultivating it. I have been cultivating it ever since. . . I cultivated it up to the road . . every year since. . . Mywife and I worked that for the Metropolitan Life InsuranceCompany." As to the adjoining former property owners, Joe T. and Edgar Bolton, under whom the plaintiff claimed, Summerford testified that Ben Sapp, working under Bolton, "never tried to go across that road there to go on that nine acres; he never came south across that road there to get on that nine acres;" that "their tenants have never gone over there and tried to take possession of that nine acres;" that while the witness had rented the adjoining land from Federal Land Bank [plaintiff's predecessor in title], after it acquired "the old Bolton place" in 1929, and the witness had cultivated that place a number of years for the Federal Land Bank, he "adhered strictly to that road over there and that old hedgerow as a dividing line between the Federal Land Bank's land and the Metropolitan Life Insurance Company's land;" that "during those five or six years I sent rent to those nine acres to Mr. Smith [whose further identity did not appear], I think in Dawson; I did not pay any rent to anybody myself for the nine acres; my wife and I worked that for the Metropolitan. . . I did that all the time I was renting from *Page 263 Federal Land Bank; during those years the Federal Land Bank had nobody looking after that land I was renting but me; no Federal Land Bank agent or official ever came down there to complain to me about the Metropolitan cultivating that nine acres of land; nobody for them at any time while I was renting from the Federal Land Bank ever did anything to cause me to believe that they did not recognize that as the dividing line between the two parties while my wife was renting from the Metropolitan . . ever since they foreclosed these papers." Summerford further testified: "When I went down there, there was a barn . . close to that oak tree . . to keep mules and feedstuff in by croppers. England Brothers [predecessors in title of Summerford and the Metropolitan] were in possession of that land immediately before I went in possession, cultivating it; . . they cultivated the nine acres . . up to that hedgerow. . . The Englands sold it to me in 1920, and they were there in 1919 and 1920. England never rented me a foot of land; they were in possession of that land west of the DeSoto Road." Elsewhere Summerford testified that he was not certain as to who had cultivated the nine acres before he went into possession.
G. C. Womack testified, that he had lived in the section where the land was since 1899, saw the barn near a big oak; and that although he did not know by whom the land was being cultivated, or "who the tenants were using the barn," he saw the land in cultivation and saw Summerford "on that piece of land;" that the road then followed an old row of bushes; and that the new road had been cut since that time.
Kennington testified that he had known the nine acres since 1912; that he "saw the Englands cultivating [it] . . about 1918 or 1919, somewhere along there . . as long as they lived there, they were cultivating it; that nine acres they were cultivating went up to that old hedgerow where those bushes go across there . . they had cultivated continuously all the time; after they left, Harold Summerford moved in there; he cultivated that nine acres; . . every year I have passed there since that time he has been tending that nine acres; . . that nine acres that I saw the Englands and Mr. Summerford cultivating went right up to an old hedgerow; that hedgerow is still there . . it is ten or twelve feet high. . . I worked that land in 1912. J. F. Kelly *Page 264 [original owner] owned it at that time; the road was in there by the hedgerow there; . . there was a little . . barn there. . . Mr. Dave Andrews and Mr. Tom Hooks and Mr. Kelly cut it up and had a subdivision. . . That DeSoto Road was opened up after that sale. . . This old road come down the road from Mrs. Clay's to that oak tree, and turned around that hedgerow and twisted all the way out to DeSoto; there was no road where the new road runs now; when they had the sale, there was no road there except this old road that went by that hedgerow."
Cobb Summerford, a brother of the former owner, testified, that his brother started cultivating the nine acres from the time the brother moved on it and "every year since then," running "up to an old hedgerow immediately north of the nine acres;" that the road then "went right around the old hedgerow right next to it;" that witness "never saw [the Boltons] or Liggin [plaintiff's predecessors in title] cultivating the nine acres," and only saw his brother "cultivating it; and that there was a little old barn set out there . . on this nine acres."
Harold Tyson testified, that he was seventy years old, and had lived near the land in dispute "all my days;" that the Englands preceded Summerford "on that place;" that "Mr. England cultivated that land when he lived there;" that Summerford "cultivated that nine acres of land after he moved there . . every year since he has been there, he is cultivating it now;" that neither of the Boltons nor Liggin, plaintiff's predecessors in title, ever cultivated any part of that land;" that "since Mr. Harold Summerford moved down there, nobody has ever cultivated that particular nine acres except" him; that the old road "went around that hedgerow, the same hedgerow . . that Mr. Summerford has been cultivating up to. . . Mr. Summerford started using [the old barn] the first year he went there; he used it until it got so it was no account and he tore it down."
There was no evidence to indicate any fraud or bad faith in the possession of the disputed tract by the defendant company or those holding for it, or by its predecessors in title.
In addition to the excluded evidence for the plaintiff, as already stated, with regard to the alleged arbitration, there was evidence to the exclusion of which plaintiff excepted, and which was in effect as follows: (a) Testimony by Westbrook, the surveyor, that *Page 265 Dellinger was "field representative located in Columbia" of the Metropolitan, Dellinger being in court, and that Westbrook examined records and went on the land in question with Dellinger and the plaintiff — as to which similar testimony by Westbrook was admitted. (b) Testimony by Westbrook that both parties had paid his bill for surveying the tract — as to which documentary evidence was admitted showing that the Metropolitan had agreed to pay one half of the expense, which was undisputed. (c) Testimony by the plaintiff Cliett as to whether the land he took possession of included "the land in controversy," which was excluded on the ground that it called for a conclusion. (d) Testimony by the plaintiff as to whether, in going on the land, he could "locate" it "from the description in that deed" from Bolton to Federal Land Bank, which was excluded as calling for a conclusion whether "it is the Bolton land or not," the plaintiff claiming under the Bolton deed; and (e) An unverified copy of a deed furnished to the plaintiff by Mr. Hooks, the identity or materiality of which does not appear from the record. 1. Although an award under an actual submission to arbitration of a question of title to real estate does not strictly operate as a conveyance, yet where the title has been adjudicated by such an award, the award is available as a basis of title to the party suing in ejectment or as a defense. 6 C. J. S. 244, § 100; 3 Am. Jur. 955, 956, § 132, and cit.
2. Without a valid submission agreement, there can be no valid arbitration or award. 3 Am. Jur. 844, § 16, and cit. In an agreement for a common-law arbitration, such as is recognized in this State (Code, § 7-101 et seq.), the ordinary elements of a valid contract must appear, including an agreement to arbitrate some specific thing, and an agreement to abide by the award, either in express language or with implied consent to do so, as where the dispute is submitted to an arbitrator for final determination and he makes an award accordingly. 3 Am. Jur. 843, 853, §§ 14, 25; 6 C. J. S. 160, 163, §§ 14, 20; and cit. Under these rules, there was neither an express nor an implied agreement to arbitrate and settle by an award the disputed ownership of the nine acres involved in this ejectment suit. Both the admitted evidence, and *Page 266 the evidence to the exclusion of which the plaintiff in the suit excepted after the direction of a verdict against him, demanded a finding for the defendant on that question; since all of this evidence went no further than to show an agreement to employ a surveyor to mark the original boundary line along a road as it originally existed, and to divide the expense of this survey; and to show that this surveyor, after going on the land, found no indications on the ground as to where the line should be, but made a plat, in evidence, showing different locations of the line and road as respectively contended by the parties; and made a report to the parties, as he also testified, giving an opinion favorable to the plaintiff, but this opinion was based, as he stated, on contradictory or ambiguous language in deeds, and was contrary to indications in the old original plat, in evidence, as to the location of the boundary line and original road prior to such deeds.
(a) Furthermore, the surveyor himself testified that his plat and report were "prepared in the nature of information for [the parties] to determine what they would do;" that he did not "set up any definite conclusions . . as to what I consider the line, that was not my province;" and that the matter could not have been settled without a submission to the New York office of the defendant for its approval.
(b) Nor was there any evidence, admitted or excluded, showing, as contended by the plaintiff, any accord and satisfaction pursuant to the report of the surveyor, or any estoppel against the defendant. Its mere statement, in a letter to plaintiff's attorney, that it did not then "believe" the tract in question to be included in its security deed, would in no event operate as a disclaimer of title, such as would thereafter preclude the defendant from claiming title by deed or by actual adverse possession, if the requisites of such possession existed; especially where the defendant's expression of opinion was coupled with statements in the same letter that it was impossible to give further information until it heard from its agent in charge of the property, and that it would write to the attorney "again as soon as we have a report on the facts in this case" from such agent; and where, after receiving a report from its agent, the defendant wrote to the attorney, denying any encroachment on land of the plaintiff, and setting up its own possession of the disputed tract over many years by the farming of its tenant. *Page 267
3. As to title under the respective deeds held by the parties, both claimed under a previous common grantor. Under general language in the instruments, the controlling question on this phase of the case was whether a road, which plaintiff's deeds described as intersecting another described road, and which formed the boundary of the land included in those deeds, was at that time located at or near its present location and intersection — so as to include the disputed tract in the property conveyed to plaintiff's predecessors in title; or whether the road and boundary fixed thereby were then located farther north along an old hedge, as contended by the defendant company, so as to exclude the land in question from plaintiff's chain of title. As to this question and on this phase of the case, the directed verdict for the defendant was authorized but not demanded, since there was conflicting evidence as to the original location of the road and its intersection.
4. However, under the defendant's plea of not guilty in the ejectment suit, and its pleaded defense of title by twenty years of actual adverse possession, and under all the evidence admitted and excluded, the directed verdict for the defendant, was demanded. There was testimony from several witnesses, which was undisputed, that continuously, since 1918 or 1919 until the suit in 1941, the person from whom the defendant company acquired title by security and foreclosure deeds, and his wife as tenant thereafter of the defendant, and their predecessors in title, were in actual adverse possession of the disputed tract, by openly cultivating it to a hedge and the alleged boundary road along this hedge; and that the owners of the adjoining property of the plaintiff, under whom he claims, never cultivated or otherwise went into possession of this tract, or claimed title thereto. There was no evidence, as contended by the plaintiff, to indicate fraud in the prescriptive claim or in any possession of the defendant's predecessors in title or of the defendant.
(a) In order to constitute the element of continuity which is essential to adverse possession as the foundation of good prescriptive title (Code, §§ 85-402, 85-406, 85-407, 85-414), it is not necessary that adverse possession be maintained for the statutory period by the same person, since continuity may just as effectively be shown by the successive bona fide possessions of several persons, provided the requisite privity exists between them, so as to permit *Page 268 a tacking of their unbroken successive possessions. In order to show privity between successive occupants, all that is necessary is that one shall have received his possession from the other by some act of such other person or by operation of law. This may be accomplished by a parol agreement or understanding, under which the actual possession of the premises is delivered, as well as by a written conveyance. Blalock v. Redwine, 191 Ga. 169 (2,a) (12 S.E.2d 639), and cit. Such a possession by a tenant or agent, under a parol understanding with the owner, will suffice to support the owner's claim of a prescriptive title.Hillyer v. Brogden, 67 Ga. 24, 26; McMullin v. Erwin,58 Ga. 427 (2); Mackenzie v. Minis, 132 Ga. 323 (4) (63 S.E. 900, 23 L.R.A. (N.S.) 1003, 16 Ann. Cas. 723); Powell on Actions for Land, 483, § 368 (note 5). Under these rules, the defendant, in claiming twenty years actual adverse possession, was entitled to tack the possessions, not only of its predecessors in title under their deeds, and of the wife of the former owner as tenant after it obtained title from such owner by security and foreclosure deeds, but of the former owner himself, since this possession by him was held under the tenancy of the wife with permission of the defendant.
(b) The fact that under the husband's testimony he rented the adjoining land from persons under whom the plaintiff claims title, during certain years of possession of the tract inquestion by the wife as tenant of the defendant company, and possession by the husband under her with the defendant's permission, would not preclude the defendant from tacking the husband's possession by cultivation of the tract in question, on the ground, as contended by the plaintiff, that the husband as tenant of the adjoining owners was estopped from disputing his landlord's title (Code, § 61-107); since, under all the evidence, it clearly appears that during such period of occupancy the adjoining owners never claimed any title or right of possession of the tract in question, or included it in any lease to the husband; and that both the adjoining owners and the husband respected the defendant's ownership up to the hedge line, as contended by the defendant.
5. The remaining exceptions, relating to the exclusion of evidence offered by the plaintiff, show no ground for reversal, since similar testimony was admitted, and since all of such evidence would not have authorized a verdict for the plaintiff on the controlling questions.
Judgment affirmed. All the Justices concur. *Page 269