Durden v. Reynolds

440 S.E.2d 170, 264 Ga. 34, 94 Fulton County D. Rep. 733, 1994 Ga. LEXIS 119
CourtSupreme Court of Georgia
DecidedFebruary 28, 1994
DocketS93A1708; S94A0056
StatusPublished
Cited by1 cases

This text of 440 S.E.2d 170 (Durden v. Reynolds) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Durden v. Reynolds, 440 S.E.2d 170, 264 Ga. 34, 94 Fulton County D. Rep. 733, 1994 Ga. LEXIS 119 (Ga. 1994).

Opinions

Sears-Collins, Justice.

These appeals involve the proceeds of DeKalb County’s condemnation of seven acres of property on which it constructed a garbage facility. At dispute in Case No. S93A1708 is the pre-condemnation ownership of the condemned property. We find that the trial court erred in refusing to grant partial summary judgment to the appellant, Lizzie Durden, on that issue. At dispute in Case No. S94A0056 is whether the amount of the condemnation award should include the value of improvements to the property made by DeKalb County (“the County”) before initiating condemnation proceedings. We find that the trial court properly granted partial summary judgment to the County on that issue.

1. In 1945, B. F. Anderson conveyed by deed 113 acres of land to Durden’s parents, Jim and Mary Freeman, excepting a 30-acre tract of land from the transfer. In 1975, DeKalb County levied upon 30 acres of property within the 113-acre tract to collect delinquent taxes for 1973 and 1974. The County notified George Anderson, a nephew of B. F. Anderson, of the levy, believing him to be the owner of the 30 acres because he had previously paid taxes on the property. In 1976, the County sold and purchased the 30 acres for $780, the amount of delinquent taxes. In 1983, the DeKalb County Tax Commissioner filed an affidavit stating that seven years had passed since the date of the execution, that the property had not been redeemed, and that title to the property had ripened by prescription in the County.

Mary Freeman became aware of the County’s claim to the property when she was asked to sign a quitclaim deed by a party seeking to purchase the property from the County, and she filed a wrongful possession action in federal court in 1985. Mary Freeman died while that suit was pending, and the suit was dismissed by Durden, as administrator. of Mary Freeman’s estate. In January 1987 Durden, on behalf of Mary Freeman’s estate, filed an ejectment action against the County in superior court. In September 1987, while the ejectment action was pending, the County began construction of a garbage facility on about 6.5 acres of the property levied upon. The County completed construction of the garbage facility in November 1989, and in January 1990 the trial court in the ejectment action found that, as the property was appraised at $1,000 per acre at the time of the levy, the County’s levying on the entire 30 acres to satisfy a $780 delinquency constituted an excessive levy, and ordered that Durden recover possession of the 30 acres and that a writ of possession issue in favor of Durden as against the County. This court affirmed the trial court’s decision without opinion in October 1990, DeKalb County v. Durden, [35]*35Case No. S90A0824.

In February 1991 the County filed a complaint for the condemnation of the seven acres upon which the garbage facility was situated. Because the heirs of B. F. Anderson (Reynolds et al., hereinafter “Reynolds”) also claimed title to the property subject to condemnation by virtue of the exception in the 1945 warranty deed from B. F. Anderson to the Freemans, the County named both Durden and Reynolds as defendants in the condemnation action and asked the court to determine the ownership interests of these persons in the property and mold the final award accordingly.

The trial court appointed a special master, OCGA § 22-2-101 et seq., who, after conducting an evidentiary hearing, found that the estate of Mary Freeman had no ownership interest in the property being condemned, and awarded Reynolds $60,000 as the fair market value of the seven acres. The trial court entered judgment in accordance with the special master’s award. Both Durden and Reynolds appealed to the superior court from the special master’s award, OCGA § 22-2-112, and both Durden and the County filed motions for partial summary judgment.

Case No. S93A1708

2. The trial court denied Durden’s motion for partial summary judgment on the issue of whether the 1945 warranty deed from B. F. Anderson to the Freemans clearly conveyed the condemned property. We granted Durden’s application for interlocutory appeal to consider “whether the deed is ambiguous so as to permit the admission of parol evidence, or whether the description of the portion to be excepted from the conveyance of the 62-acre tract is so vague that the exception from the conveyance fails.”

The deed described the property conveyed to the Freemans, in relevant part, as follows:

All that tract or parcel of land, lying and being in the sixteenth (16th) District of, originally Henry, now DeKalb County, Georgia, and being part of Lot of land number 156, the same being fifty acres, more or less, out of the northeast corner of said land Lot, . . .
ALSO:
All that tract or parcel of land lying and being in the 16th District of originally Henry, now DeKalb County, Georgia and containing sixty-three acres, more or less, bounded as follows:
One acre, more or less in part of land lot 166 and sixty two acres more or less, in parts of land lots 156 and 165 ....
[36]*36EXCEPT from the above 62 acre tract [¶ 30 acres more or less situated in the Northwest corner of said tract, which tract is 800 feet more or less from the center of a branch on the south side and being all of said tract on the northwest side of the Center line of the above named branch.

(Emphasis supplied.)

None of the parties disputes that the seven acres of property which the County now seeks to condemn lie within the 50-acre tract of land described above. However, Reynolds argues that because there is no “branch” within the 62-acre tract, there is no property to satisfy the deed’s description of the property excepted, and parol evidence is, therefore, admissible to clarify the ambiguity created in the deed. Reynolds contends that parol evidence will show the jury that the intent of the deed was to except from the conveyance a 30-acre tract within the 50-acre tract, including the condemned seven acres, thus entitling Reynolds to the proceeds of condemnation.1 2

It is well established that where a property description in the written contract is ambiguous, in that it can be interpreted as referring to more than one piece of property, parol evidence is admissible to explain the ambiguity.

(Emphasis supplied.) Tuggle v. Wilson, 248 Ga. 335, 336 (282 SE2d 110) (1981). However, parol evidence may not “add to, enlarge, or in any way change the description” contained in the deed. (Emphasis supplied.) Gainsville Midland R. Co. v. Tyner, 204 Ga. 535, 536 (50 SE2d 108) (1948). Furthermore, “where subsequent words in a deed are of doubtful import, they cannot be construed so as to contradict the preceding words which are certain.” 23 AmJur2d 230, 231, Deeds, § 227.

It is evident from the transcript of the hearing before the special master that the construction of the deed urged by Reynolds would require considerable resort to parol evidence.

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Cite This Page — Counsel Stack

Bluebook (online)
440 S.E.2d 170, 264 Ga. 34, 94 Fulton County D. Rep. 733, 1994 Ga. LEXIS 119, Counsel Stack Legal Research, https://law.counselstack.com/opinion/durden-v-reynolds-ga-1994.