1. A deed describing the land conveyed as lot 168, "containing 157 acres more or less," purports to convey the entire lot, and under the Code, § 85-404, actual possession of a portion of the lot under such a deed gives the grantee constructive possession of the entire lot.
2. Oral admissions by the grantee in a deed that a portion of the land described therein does not belong to him, but belongs to another, are not sufficient to show that the title to the portion referred to is in such other person.
3. Actual adverse possession by one claimant is inconsistent with and will prevail over mere constructive possession by another claimant. Evidence that a claimant of a tract of land, which has never been cultivated or placed under fence, cut the timber therefrom once or twice over a period of thirty years, that he collected damages on one occasion for soil removed therefrom by the county, and that it was understood in the community that such claimant owned the land, is not sufficient to show actual adverse possession by such claimant.
4. The principle that a boundary line between adjoining landowners may be established by consent is not applicable in a case where one claiming to be an adjoining landowner has no independent title, but must rely on such consent to show title. To apply the principle in such a case would amount to a parol transfer of title to land.
5. In the instant suit to enjoin the defendant from cutting timber on land and to recover damages, the court properly directed the verdict for the plaintiffs, and did not err in overruling the motion for a new trial.
No. 14104. JUNE 18, 1942. The plaintiffs filed their petition against J. C. Shahan, to recover damages for trespass by reason of the defendant having entered upon and cut the timber from described land, and to enjoin the defendant from further trespass. The plaintiffs alleged, that they were tenants in common of lot number 168 in the 26th district and 3d section of Walker County, containing 160 acres, more or less; that David Smith conveyed the said lot of land to their father, Lewis Watkins, by warranty deed dated December 1, 1909, which deed was duly recorded on March 10, 1910; that Lewis Watkins conveyed the lot to petitioners by warranty deed dated March 17, 1931, and recorded April 13, 1931; and that petitioners and their father had been in constant, uninterrupted, open, and adverse possession of the lot of land under color of title since December 1, 1909, a period of over thirty years, and said possession had been made manifest by actual continuous residence on said lot. Each of the deeds referred to described the lot as containing 157 acres, *Page 165 more or less. It was alleged that the defendant was engaged in cutting and removing the timber from a tract of about three acres located in the northeast corner of the lot, without authority from the plaintiffs and without valid claim thereto. In his answer the defendant admitted that he was cutting the timber as alleged, but claimed that he was the owner of the described three-acre tract of land. He alleged that he and his father, David Shahan, had owned and had been in adverse possession of this tract of land for a period of more than thirty years.
On the trial the plaintiffs introduced in evidence the two deeds referred to in their pleadings, and showed that they and their father, their precedessor in title, had resided on lot 168 since 1909, cultivating a portion of the land each year. It appeared from the evidence that the three-acre tract in dispute was located in the northeast corner of the lot, had never been cleared or cultivated, and had never been under fence. There was evidence that the plaintiffs and their predecessor in title had had the timber on this tract cut for sawmill purposes once or more during the time that they had been in possession of lot 168. The defendant introduced in evidence, a warranty deed from C. T. and Mary S. Townsend to J. H. Shahan, dated November 12, 1898, conveying along with other lands lot 168, which was described as containing "160 acres, more or less;" a warranty deed from J. H. Shahan to David Shahan, dated August, 1899, conveying a half undivided interest in lot 168 and the other lands described in the Townsend deed; and a warranty deed from David and J. H. Shahan to David Smith (the grantor in the deed to plaintiffs' father), dated September 26, 1903, conveying lot 168 "containing 157 acres, more or less," and certain other described lands. The defendant also introduced evidence that his father had had the timber cut from the land in dispute in 1910 or 1911, after the father of the plaintiffs had bought lot 168, without objection from plaintiffs' father; that about four years before the trial the county took some of the soil from this tract for use on a road, for which the county finally paid the defendant; that the plaintiff's father admitted throughout his lifetime that the tract in dispute belonged to the defendant's father, and promised to testify for the defendant in the threatened suit against the county to recover for the soil taken by it; and that the plaintiffs' father said that this tract had been swapped for a two-acre tract in the southwest *Page 166 corner of lot 167 years before he purchased lot 168. The defendant offered in evidence a deed to him from his father, David Shahan, dated May 28, 1935, describing certain lands including the following "3 acres of land in the 26th district and 3rd section of said state and county, same measuring 2 acres north and south and one acre east and west near the Old Furnace property and situated in the northwest corner of lot of land No. ____." The plaintiffs objected to the admission of this deed in evidence, on the ground that the description was too vague to convey any interest in any land on lot 168. The court overruled this objection; but when it was later developed from the evidence that the grantor had kept this deed with his will in a safety-deposit box in a bank until his death, and that it had been delivered to the grantee by the executrix of the will in accordance with the direction of the will that it be so delivered, the court excluded the deed from evidence because of lack of proper delivery.
At the conclusion of the evidence the court directed a verdict for the plaintiffs. By agreement of the parties the amount of the damages was fixed at $50. The defendant's motion for new trial was overruled, and he excepted. 1. The evidence showed that the plaintiffs had paper title to lot 168, of which the three-acre tract of land in dispute was a part. In 1909 the father of the plaintiffs, their predecessor in title, obtained a deed to lot 168 "containing 157 acres, more or less." The defendant introduced deeds showing that his father in 1899 obtained title to a half undivided interest in lot 168 by a deed describing the lot as containing "160 acres, more or less," and that in 1903 he joined with the owner of the other half interest in a deed conveying lot 168 "containing 157 acres, more or less," to David Smith, the grantor of the deed to the plaintiffs' father. It is urged that these deeds show that it was the intention of the defendant's father to except from lot 168 the three-acre tract here involved. While such might have been the intention of the parties, this intention could not be carried into effect by merely describing the lot as containing 157 acres, more or less, instead of 160 acres, more or less, as it had been described in previous deeds. As written the deed purported to convey the entire lot. If the deed did not express the intention of the parties, reformation should have been sought. Such has not been done. *Page 167
The evidence showed that the plaintiffs and their father have been in actual possession of a portion of the lot since 1909, when the father took possession under his deed. While the evidence did not demand a finding that they had been in actual possession of the tract in dispute, their actual possession of a portion of the lot coupled with their paper title gave them constructive possession of the entire lot. Code, § 85-404. This evidence was sufficient to show title in the plaintiffs.
2. The defendant contends, however, that the evidence introduced by him to the effect that the father of the plaintiffs made oral admissions during his lifetime that the land in dispute did not belong to him, but belonged to the father of the defendant, was sufficient to authorize the jury to find that the plaintiffs did not have title. There is no merit in this contention. As said in Compton v. Cassada, 32 Ga. 428, "titles to land can not be created by mere verbal declarations of this character without overturning the statute of frauds." The deed to the plaintiffs' father having conveyed to him the entire lot, he could not effectually limit the description of the deed by mere oral admissions.
3. If the defendant had been able to show that his father had been in adverse possession of the tract of land in dispute for the requisite period of twenty years, he would have been able to show that the plaintiffs did not have sufficient title to authorize them to obtain the relief sought. Actual adverse possession by one claimant is inconsistent with and will prevail over mere constructive possession by another claimant. Brookman v. Rennolds, 148 Ga. 721 (8) (98 S.E. 543). The evidence, however, failed to make out a case of adverse possession. It appeared without dispute that the tract involved had never been cleared or cultivated and had never been fenced. The defendant introduced evidence that his father had had the timber on the tract cut in 1910 or 1911, and showed that he had collected from the county for soil removed therefrom by the county a few years before this suit was filed. There was also evidence that it was understood in the community that the defendant's father owned the tract. This evidence was insufficient to show adverse possession.Wood v. McGuire, 15 Ga. 202; Watts v. Griswold,20 Ga. 732 (65 Am. D. 647); Long v. Young, 28 Ga. 130;Durham v. Holeman, 30 Ga. 619 (4); Carrol *Page 168 v. Gillion, 33 Ga. 539 (2); Walker v. Hughes, 90 Ga. 52 (15 S.E. 912).
4. "Acquiescence for seven years, by acts or declarations of adjoining landowners, shall establish a dividing line." Code, § 85-1602. While there was some evidence that the plaintiffs' father admitted during his lifetime that his property only went to the edge of the property in dispute, and acquiesced in the line as claimed by the defendant's father, the principle of law stated above is not applicable in the instant case. "When a boundary line is established by consent, the coterminous proprietors hold up to it by virtue of their title deeds, and not by virtue of a parol transfer of title." Osteen v. Wynn,131 Ga. 209, 215 (62 S.E. 37, 127 Am. St. R. 212). The evidence does not disclose that the defendant's father or any one under whom he claimed held title to the three-acre tract or other adjoining property at the time of the acquiescence here shown. To apply this principle here would not be to fix the line between coterminous owners, but would give title to land by parol. This can not be done.
5. Under the rulings stated above, the deed to the defendant from his father could have had no bearing on the result if it had been admitted in evidence. We therefore need not consider whether its rejection was erroneous. The evidence demanded the directed verdict, and the court did not err in overruling the motion for a new trial.
Judgment affirmed. All the Justices concur.