DeLamar v. Titus

190 S.E.2d 54, 229 Ga. 233, 1972 Ga. LEXIS 565

• Court: Supreme Court of Georgia
• Decided: June 15, 1972
• Docket: 27183
• Status: Published

Opinion

Undercofler, Justice.

This is an action for ejectment and injunctive relief. Essentially the issue is the location of the dividing line between the appellants’ property on the south and the appellee’s property on the north. Originally the action involved a fence line running at an angle to the claimed property lines. The parties concede the fence is not the boundary line.

The court directed a verdict for the appellee and granted her a writ of possession for the property described in her deed. Held:

The appellee introduced evidence in support of her claim that the starting point of the boundary line was the southeast corner of her property which was 778 feet ". . . south along the line of the Cudd property. . .” The appellants’ deed and plats, also in evidence, showed the starting point to be the northeast corner of their property which was 870 feet north of a point . . eight feet south of a rock planted on the north side of the road [Marbut Road]. ..” Under this evidence a verdict was not demanded for the appellee. Furthermore the judgment did not decide the essential issue of boundary. As stated by the trial judge, "And I will have to direct the verdict that he’s [appellee] entitled to a writ of possession from 778 feet from wherever it is, and I don’t know where it is.” Therefore, the direction of the verdict was error. See Powell on Actions for Land, 1946, § 57 (a), p. 52; Pindar, Georgia Real Estate Law (1971), §§ 13-44, 13-45, pp. 463, 464.

Submitted May 9, 1972 Decided June 15, 1972. Edward D. Wheeler, for appellants. Martin McFarland, for appellee.

Judgment reversed.

All the Justices concur.