Kemp v. Parks

180 S.E.2d 350, 227 Ga. 319, 1971 Ga. LEXIS 689

• Court: Supreme Court of Georgia
• Decided: March 4, 1971
• Docket: 26194
• Status: Published

Opinions

Mobley, Presiding Justice.

A. 0. Parks brought an action in ejectment on October 14, 1969, against Chloe Kemp, seeking to recover possession of a small tract of land designated as an encroachment on his property. Sarah Kemp Moore and Evelyn Kemp, as cotenants in possession, were subsequently made parties defendant.

On the trial of the case Parks established record title to the land in dispute. The Kemps sought to establish their title by adverse possession under color of title for seven years. Their warranty deed was dated June 28, 1963, and in order to claim adverse possession under color of title for seven years they had to rely on a contract to sell between H. R. Holland and Chloe Kemp dated October 25, 1961. The trial judge held that this contract to sell did not constitute color of title, and directed a verdict for Parks. The appeal is from the judgment entered on that verdict.

The only question for decision is whether the contract to sell constituted color of title. This court in Shippen v. Cloer, 213 Ga. 172 (97 SE2d 563), held that the contract to sell dealt with in that case did not constitute a muniment of title, nor color of title. Appellants the Kemps) contend that the contract to sell in the present case is distinguishable from that in the Shippen case, and that the contract in the present case constituted color of title.

In the contract to sell the seller agreed to sell, and the buyer agreed to buy, a tract of land described as “a portion of Lot 3, Block D, Pinecrest Hills Subdivision, Clarke County, Georgia, according to plat hereto attached.” The buyer agreed to pay the seller $2,750 and to assume an existing loan of $9,400. The $2,750 was to be deposited in escrow, to be delivered to the seller, conditioned upon the seller delivering a warranty deed within twelve months evidencing good title to the property. In the event the deed was not delivered within the twelve months, then the agreement "shall be void and of no effect.” The buyer was to make payments to a named loan association in the sum of $77 per month "until sale is consummated or this contract is void.” In the event the seller did not deliver good title to the buyer within twelve months, "then all monthly payments made on said mortgage by buyer shall be considered rent on said property.” Buyer was to have occupancy of the property by November 1, 1961.

In Beverly v. Burke, 9 Ga. 440, 444, color of title was defined to be "a writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or from the defective conveyance that is used — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law.”

The contract to sell in the present case did not in any way purport to convey title. It did give possession of the property, but provided that if the sale was not consummated, the monthly payments would constitute rent. The fact that the buyer made payments under the contract has no bearing on the question of whether the instrument could be considered as color of title. We are not concerned in this case with the equities between the buyer and the seller. The buyer received warranty deed to the property in 1963. The question in this case is whether the contract to sell could be color of title under which the buyer could prescribe against an adjoining landowner who claimed that appellants had encroached on a small strip of his land.

Appellants assert that the contract to sell is the equivalent of a bond for title, and that this court has held that a bond for title is color of title. A bond for title (formerly used extensively but now seldom used) combines to some extent the features of a warranty deed from the seller to the buyer, and a security deed from the buyer to the seller. It binds the vendor to make warranty title. Clark v. Whitehead, 47 Ga. 516 (3). The vendor in a bond for title is a trustee of the vendee for the conveyance of the title and the vendee is trustee for the payment of the purchase money. Heard v. Phillips, 101 Ga. 691, 696 (31 SE 216, 44 LRA 369). It has been called a muniment of title. Pierce v. Dennett, 163 Ga. 471, 477 (136 SE 440). A bond for title, with the purchase money paid, is a complete title. Adams v. Brooks, 35 Ga. 63 (2).

The contract to sell in the present case does not bear any resemblance to a bond for title. It is a simple contract to sell. It does not bind the vendor in a penal sum to make a warranty deed to the vendee. On the contrary, it states that in the event the seller does not deliver a warranty deed evidencing good title within 12 months, the agreement shall be void and of no effect. The contract did not purport to pass title. The trial judge correctly held that it was not color of title, and properly directed a verdict for the appellee.

Furthermore, even if the contract to sell had been such a writing as might constitute color of title, it could not be effective to do so under the evidence in the case. The contract to sell described the land as an undefined "portion” of a lot, according to an attached plat. This plat had been detached from the contract and appellants were unable to produce it. If the extent of the claim is not defined in an instrument, it can not be relied on as color of title to aid prescriptive possession. Luttrell v. Whitehead, 121 Ga. 699, 701 (49 SE 691).

Judgment affirmed.

All the Justices concur except, Nichols and Felton, JJ., who dissent.