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This case arose when Josephine Bailey petitioned to quiet title under OCGA 23-3-60 et seq., asserting that she owned an adjacent property at issue by deed and, in the alternative, by prescription. On appeal, Bailey appealed the order of the superior court adopting the report of a Special Master and decreeing that fee simple title to the parcel of land at issue was vested in Derether Moten. The court held that the judgment of the trial court that Bailey did not have title to the property by virtue of deed was not error; the trial court did not err in adopting the report of the Special Master and denying Bailey's claim of adverse possession; and that Moten's quitclaim deed was the only deed placed before the Special Master that described an interest in the property and it was not error for the trial court to adopt the Special Master's conclusion that title was vested in Moten. Accordingly, the judgment was affirmed.Receive FREE Daily Opinion Summaries by Email
In the Supreme Court of Georgia
Decided: October 17, 2011
S11A01260. BAILEY v. MOTEN.
In this quiet title action, Josephine Bailey (“Bailey”) appeals the order of
the superior court adopting the report of a Special Master and decreeing that fee
simple title to a parcel of land in Coweta County is vested in Derether Moten.
For the reasons that follow, we affirm.
Bailey owns a house and lot in the City of Newnan to which she has
record title. The property that is the subject of this quiet title action is located
adjacent to and behind Bailey’s house and lot. The subject property is also
adjacent to a house and lot to which Moten holds record title. Bailey’s petition
to quiet title under OCGA § 23-3-60 et seq., asserted that she owned the subject
property by deed, and alternatively, by prescription. “In an action to quiet title
brought under OCGA § 23-3-60 et seq., the findings of the Special Master and
adopted by the trial court will be upheld unless clearly erroneous. Therefore, if
there is any evidence supporting the judgment of the trial court, it will not be
disturbed.” Cernonok v. Kane, 280 Ga. 272, 273 (1) (627 SE2d 14) (2006)
(Citations and punctuation omitted.).
1. Bailey’s claim of ownership by deed is based upon a warranty deed
dated December 17, 1974, from grantor Richard Beardon to grantee Matthew
Bailey, who was her husband.1 But, this deed sets forth a metes and bounds
description that corresponds to Bailey’s house and surrounding lot only; the
description does not include the subject property. The deed also recites that the
land conveyed “is more particularly identified by plat of property . . . dated
December 12, 1974, of record in Plat Book 19, Page 103 . . . .” The referenced
plat depicts a tract corresponding to the metes and bounds description; the plat
designates the property containing Bailey’s house by solid lines and does not
include the subject property therein. The plat also carries the notation that it is
a portion of property recorded on an earlier plat.
Thus, by its express description, the deed upon which Bailey relies did not
convey an interest in the subject property. See Hardy v. Branner, 194 Ga. 252
(21 SE 417) (1942). Nor is there any inconsistency between the metes and
After Matthew Bailey died, his children in 1992 executed a quitclaim deed to the Bailey
home property, conveying it to Josephine Bailey, using the same metes and bounds description
and plat reference as in the 1974 deed to Matthew Bailey.
bounds description and the referenced plat2; both clearly described property
other than the disputed land. Id. Compare Williams Bros. Lumber Co. v.
Massey, 179 Ga. 508 (1) (176 SE 378) (1934). Accordingly, the judgment of
the trial court that Bailey did not have title to the property by virtue of a deed
was not error.
2. Bailey also claims prescriptive title to the subject property by
possession for a period of more than 20 years3 under OCGA § 44-5-163.4 “To
establish title by adverse possession . . . a party must show possession not
originated in fraud that is public, continuous, exclusive, uninterrupted and
Bailey contends that a plat different from that appearing at Plat Book 19, Page 103 was
prepared for the 1974 deed, and encompassed the subject property in the grant to Matthew
Bailey, but there is no indication that such was ever recorded. Rather, the record is clear; the
1974 deed’s metes and bounds description includes only the Bailey residence property, and not
the subject property, and the plat referenced in the deed similarly delineates the land conveyed as
separate from the subject parcel.
Bailey also asserts that the seven-year period of prescription set forth in OCGA § 44-5164 applies, on the theory that she had color of title to the subject property in the 1974 deed to
Matthew Bailey. But, as noted above, see Division 1, supra, the 1974 deed does not describe the
subject property, and thus cannot serve as color of title to it. Luttrell v. Whitehead, 121 Ga. 699,
701-702 (1) (49 SE 691) (1905); Williamson v. Tison, 99 Ga. 791 (1) (26 SE 766) (1896).
OCGA § 44-5-163 reads:
Possession of real property in conformance with the requirements of Code Section
44-5-161 for a period of 20 years shall confer good title by prescription to the
property against everyone except the state and those persons laboring under the
disabilities stated in Code Section 44-5-170.
peaceable, and accompanied by a claim of right. OCGA § 44-5-161 (a).5”
Cooley v. McRae, 275 Ga. 435, 436 (569 SE2d 845) (2002). “Prescriptive rights
are to be strictly construed, and the prescriber must give some notice, actual or
constructive, to the landowner he or she intends to prescribe against.” MEA
Family Investments, LP v. Adams, 284 Ga. 407, 408 (667 SE2d 609) (2008)
(Citation and punctuation omitted.). “Actual possession of lands may be
evidenced by enclosure, cultivation, or any use and occupation of the lands
which is so notorious as to attract the attention of every adverse claimant and so
exclusive as to prevent actual occupation by another.” OCGA § 44-5-165.
Neither Bailey nor her husband cultivated the property or erected any
structure or fence upon it. See Double “D” Bar “C” Ranch v. Bell, 283 Ga.
386, 387 (2) (658 SE2d 635) (2008). Compare Walker v. Sapelo Island
Heritage Auth., 285 Ga. 194, 197-198 (2) (674 SE2d 925) (2009). The Special
OCGA § 44-5-161 (a) reads:
(a) In order for possession to be the foundation of prescriptive title, it:
(1) Must be in the right of the possessor and not of another;
(2) Must not have originated in fraud except as provided in Code Section
(3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and
(4) Must be accompanied by a claim of right.
Master noted that Bailey had periodically mowed the property, but
mow[ing] and occasionally clean[ing] up the area . . . is not
generally sufficient to constitute actual possession, much less to
require such conclusion as a matter of law. [Cit.] Because the lot in
question adjoins [Bailey’s] property, other claimants could have
interpreted such mowing and occasional clean-up as having a
merely aesthetic objective and not as an intent to exercise dominion.
Friendship Bapt. Church v. West. 265 Ga. 745, 746 (462 SE2d 618) (1995).
The Special Master also found that Bailey had periodically used the property for
family gatherings, but occasional visits are not sufficient to establish possession.
See Robertson v. Abernathy, 192 Ga. 694, 699 (4) (16 SE2d 584) (1941). There
was evidence that in 1974 or 1975, Bailey and her husband caused the subject
property to be cleared of wild vegetation. However, “[t]imber cutting as
evidence of possession has been held to be of little value,” Cheek v. Wainwright,
246 Ga. 171, 172 (1) (269 SE2d 443) (1980), there is no “stamp of approval
upon mere cutting of trees as evidence of actual possession,”, id. at 173, and the
clearing of vegetation does not require a finding that possession has been
Bailey contends that a pre-existing fence situated at one end of the subject
property, together with the vegetation lines caused by the clearing and periodic
mowing of the property, constituted an enclosure of the property so as to
evidence possession. OCGA § 44-5-165; McCrea v. Georgia Power Co., 179
Ga. 1 (174 SE 798) (1934). Whether the property was enclosed was an issue for
the trier of fact, see Brookman v. Rennolds, 148 Ga. 721, 731-732 (10) (98 SE
543) (1919), and the photographs submitted in support of this claim could allow
the Special Master to conclude that the asserted enclosure was not “so notorious
as to attract the attention of every adverse claimant and so exclusive as to
prevent actual occupation by another.” OCGA § 44-5-165. As there was some
evidence supporting the trial court’s judgment, it did not err in adopting the
report of the Special Master and denying Bailey’s claim of adverse possession.
3. The Special Master concluded that, by virtue of a 2001 quitclaim deed,
title to the subject property was vested in Moten in fee simple, which was
included in the trial court’s final judgment. Bailey contends that this was error,
asserting that Moten’s chain of title is incomplete, as it arises from a 1979 deed
in which the grantor was the “Fulton National Bank of Atlanta as Trustee under
Jay Properties Trust.” While a 1966 deed was executed conveying the property
to the “Fulton National Bank of Atlanta, executor Jay C. Smith, Sr. Estate,”
Bailey asserts there is no record after that deed of the property being conveyed
to “Fulton National Bank of Atlanta as Trustee under Jay Properties Trust.”
However, under the quiet title procedure, the Special Master is empowered “to
ascertain and determine the validity, nature, or extent of petitioner's title and all
other interests in the land, or any part thereof, which may be adverse to the title
claimed by the petitioner . . . .” OCGA § 23-3-66 (Emphasis supplied.) See
MPP Investments, Inc. v. Cherokee Bank, N.A., 288 Ga. 558, 560-561 (1) (707
SE2d 485) (2011). Moten’s quitclaim deed was the only deed placed before the
Special Master that described an interest in the subject property, and it was not
error for the trial court to adopt the Special Master’s conclusion that title was
vested in Moten.6
Judgment affirmed. All the Justices concur.
Bailey also enumerates as error the trial court’s acceptance of the Special Master’s
conclusion that Bailey’s “[p]redecessor in title . . . never took title to the subject property.”
Assuming that the Special Master’s reference is to Beardon, rather than to Matthew Bailey or his
children who executed the quitclaim deed by which Bailey claims title to her house and lot, the
deed by which Beardon was conveyed the Bailey home property contained a metes and bounds
description that corresponded only to Bailey’s house and lot. In any event, any conclusion on the
part of the Special Master regarding the full extent of Beardon’s holding is of no moment; the
deed from Beardon to Matthew Bailey in no way purports to convey anything beyond that
specifically granted by the metes and bounds description and the referenced plat, i.e., the Bailey
house and lot.