Small v. Irving

729 S.E.2d 323, 291 Ga. 316, 2012 Fulton County D. Rep. 2156, 2012 WL 2512747, 2012 Ga. LEXIS 639
CourtSupreme Court of Georgia
DecidedJuly 2, 2012
DocketS12A0182
StatusPublished
Cited by4 cases

This text of 729 S.E.2d 323 (Small v. Irving) 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
Small v. Irving, 729 S.E.2d 323, 291 Ga. 316, 2012 Fulton County D. Rep. 2156, 2012 WL 2512747, 2012 Ga. LEXIS 639 (Ga. 2012).

Opinion

Hunstein, Presiding Justice.

Appellant Leonard Small commenced an action in the trial court seeking ejectment and mesne profits after learning that appellee Alphonso Irving had built a home on a lot located at 4110 Raybun Street in Savannah, which Small had purchased at a tax sale. A special master was appointed and issued an order adopted by the trial court, recommending that Small recover the premises and pay Irving for the value of the improvements. Finding that the trial court erred in adopting the special master’s conclusion that Small could not recover mesne profits and in failing to provide for the election of remedies contemplated by OCGA § 44-11-9, we affirm in part, reverse in part, and remand with direction.

The record shows that Grace Cobbs previously held the property under a 1959 warranty deed. The property was sold at a tax sale in 1991 to Shannon and Tresa Holman and sold again at a tax sale in 2002 to Small. In March 2005, Irving obtained a building permit and began construction of a home on the property. Irving owned a different lot in the vicinity and contends that he saw a “for sale” sign at 4110 Raybun Street at the time he bought his property, thought he was purchasing that lot, and believed that he owned it when he commenced construction on it. Irving rented the house he built to his sister. After Small received his 2005 tax assessment in November 2006, he discovered the new house.

In April 2007, Small filed a complaint for ejectment and mesne profits against Irving and his sister. On July 20,2007, Irving obtained a quitclaim deed from the Holmans under which they conveyed their interest in the property to him. Irving then filed an answer and counterclaim in which he tendered a sum of money as a purported redemption. Irving subsequently added counterclaims for equitable title to the property and to recover the value of improvements. On November 29,2007, Small obtained a quitclaim deed from Cobbs’ sole heir under which the heir conveyed his interest in the property to Small.

After Small and Irving filed cross-motions for summary judgment, a special master was appointed with the parties’ consent “to hear and determine all issues of law and fact presented by the pleadings.” The special master held an unrecorded hearing on June 10, 2008. The record was held open for 30 days to allow the parties to submit additional evidence. In October 2008, Small served a notice of foreclosure of the right of redemption.

In his final report dated May 29, 2009, the special master found that title to the property was vested in Small under a 2002 sheriff’s [317]*317deed for unpaid taxes and the quitclaim deed from Cobbs’ heir and that Irving’s tender in his counterclaim was insufficient to redeem the property. The special master also found, however, that Irving “had bona fide possession of the land under adverse claim of title” and placed improvements on the property in good faith. The special master concluded that Small was entitled to (1) recover the premises subject to paying Irving the excess of the value of the improvements over the mesne profits or (2) receive from Irving the value of the land and the mesne profits. But the special master went on to find that Small was not entitled to mesne profits because he held only a tax title to the property. Thus, the special master found that Small was entitled either to recover the premises by paying Irving $60,000 or to receive the value of the land from Irving, determined by the tax records to be $16,000, plus the redemption amount of $9,442.20.

The special master sent his final report to the parties and gave Small 30 days to make an election of remedies. Small made no election, however, and instead filed exceptions to the report. Thus, the special master recommended that Small have title to the property and that Irving receive a judgment in his favor for the value of the improvements. Small filed a voluntary dismissal on June 8, 2009; however, the trial court subsequently granted Irving’s motion to re-open the case as to his counterclaims. The trial court adopted the special master’s report and issued an order providing that Small holds fee simple title to the property and entered a judgment in Irving’s favor in the amount of $60,000.

1. Small contends that the evidence fails to support the special master’s finding that Irving placed improvements on the property in good faith within the meaning of OCGA § 44-11-9 (a), which provides that a defendant in ejectment who is in “bona fide possession of the land under adverse claim of title may set off the value of all permanent improvements placed on the land in good faith,” and that “if the value of such improvements at the time of the trial exceeds the mesne profits, the jury may render a verdict in favor of the plaintiff for the land and in favor of the defendant for the amount of the excess of the value of the improvements over the mesne profits.” Whether a defendant has placed improvements on land in good faith is an issue for the trier of fact. Gay v. Strain, 261 Ga. App. 708 (3) (583 SE2d 529) (2003); see also Claxton v. Claxton, 214 Ga. 715 (2) (107 SE2d 320) (1959) (trial court should have instructed jury on the principles of statute given conflicting evidence regarding defendants’ good faith). The hearing before the special master was not transcribed, and without a transcript of that proceeding, we must presume that the special master’s finding that Irving acted in good faith is supported by the evidence. See Goodson v. Ford, 290 Ga. 662 (2) (725 SE2d 229) [318]*318(2012); Tavakolian v. Scott, 282 Ga. 578, 579 (652 SE2d 542) (2007).1 Therefore, we conclude that the trial court did not err in accepting the special master’s finding on this issue.

2. Small next argues that the special master could not correctly conclude that Irving was in “bona fide possession of the land under adverse claim of title,” maintaining that Irving did not have color of title, such as a deed purporting to convey the property, at the time he began construction. An adverse claim of title under OCGA § 44-11-9 (a) “is the entry upon and the occupancy of land by one with the intent to hold it as his own against the world, irrespective of any color of right or title as a foundation for his claim. Color of title is not synonymous with claim of title.” (Citation omitted.) Walton v. Sikes, 165 Ga. 422, 425 (1) (141 SE 188) (1928). Irving did not need color of title to establish his bona fide possession of the property or an adverse claim of title. Id. at 425 (1), 428 (3).

Alternatively, Small argues that Irving cannot establish adverse possession for 20 years under OCGA § 44-5-163. While “adverse possession which, if continued for a period of twenty years or longer, would ripen into a title by prescription” is sufficient to establish bona fide possession of property under adverse claim of title, Walton, supra, 165 Ga. at 425 (1), a defendant’s right to recover the value of improvements is not contingent on adverse possession for a specific period of time.

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Cite This Page — Counsel Stack

Bluebook (online)
729 S.E.2d 323, 291 Ga. 316, 2012 Fulton County D. Rep. 2156, 2012 WL 2512747, 2012 Ga. LEXIS 639, Counsel Stack Legal Research, https://law.counselstack.com/opinion/small-v-irving-ga-2012.