Knott v. McWhirter

Beck, J. (After stating the foregoing facts.) 1. We are of the opinion that the court erred in overruling the demurrer to the amendment seeking to make Mrs. Cobbs a party-defendant to this ease. Clearly she has no common right with the plaintiff or with the defendant. Under the allegations in the petition and in the proposed amendment, when they are considered [341] together, it distinctly appears that the description of the property which was conveyed by Leak to Loftin in 1885 was made with reference to the prior conveyances of Eatteree to Pritchett, Eatteree to Waters, and Waters to Knott, executed, respectively, in 1870, 1871, and 1882. These three deeds last referred to, especially the deed from Waters to Knott conveying 8 acres in 1882, fixed definitely and absolutely the southeast corner of the tract of land conveyed to Knott and the southern line of Knott’s property; and the northern boundary of the land now claimed by Mrs. McWhirter, which was first carved out of the land' conveyed by Eatteree to Leak when Leak sold to Loftin, was made identical with the line constituting the southern boundary of Knott’s tract of land acquired by him from Waters or from Waters and Eskridge. There was nothing indefinite about the location of that southeast corner of Knott’s land or of the southern boundary. If it afterwards became indefinite, it was because Knott crossed his southern line and invaded territory belonging to Leak, or to Leak’s successors in title, to whom had been conveyed the land immediately adjoining the tract of 8 acres described in the conveyance by Waters to Knott. When in 1885 Leak conveyed to Loftin the 4.41 acres of land bounded on the north by the southern boundary of Knott’s 8 acres of land, Knott could not have acquired any prescriptive title as against Leak’s grantee, Loftin. If by subsequent adverse possession he acquired a good prescriptive title to the strip of land south of the southern boundary of his land as fixed by his deeds to the 8 acres of land, it was acquired to the loss of those who held, through subsequent conveyances, from Loftin; and if Knott acquired in this way a prescriptive title to a strip of land on the northern part of the 4.41 acres of land conveyed by Leak to Loftin, it in no way affected Mrs. Cobbs’s title with which she became vested under thé deed executed in 1900 by her father, H. E. Leak. If the title to any part of the land which Leak’s deed to his daughter, Mrs. Cobbs, purports to convey, fails, it will be not'because of any title to a strip of land acquired by Knott along the northern portions of the 4.41 acres of land, but because it embraces a part of the land which Leak had formerly conveyed to Loftin. For, examining the deed from Leak to his daughter, it seems to convey (though this may be an ambiguity) the land in land lot 134, “except eight (8) acres on the north line in the old field between the big road and the [342] Macon and' Western and Central B. B. right of way.” The description we have just quoted may be ambiguous and open to this objection; but that does not affect what we have said above, that the title to the 8 acres of land to which Knott holds written title, and the 4.41 acres conveyed by Leak to Loftin and thence, by subsequent conveyances, to the plaintiff, is not affected by the deed which Leak executed to Mrs. Cobbs, it being subsequent in date of execution and record to the deed to Loftin, through whom Mrs. McWhirter derives title, and to the deed to Knott. There can be no controversy between Knott and Mrs. Cobbs, nor has he any common interest with her. And the demurrer to the amendment seeking to make Mrs. Cobbs a party should have been sustained. 2. The court having erroneously overruled the demurrer offered by the defendant to the amendment to the petition, what took place in the trial subsequently to the overruling of the demurrer was entirely nugatory; and it is unnecessary to pass upon the questions that were raised as to the rulings of the court during the progress of the trial, and as to certain portions of the charge to the jury. Louisville & Nashville R. Co. v. Reece, 136 Ga. 394 (71 S. E. 695). Judgment reversed. All the Justices concur.