Leachman v. Patterson

Almand, Chief Justice. This appeal is from the denial of appellant’s motion for a summary judgment in a dispute over the boundary line between two adjacent tracts of land. The facts are essentially as follows: On February 18, 1959, Donahoo, by separate warranty deeds, conveyed to Fowler two adjacent tracts of land, hereinafter referred to as Tract A and Tract B. On the same day, Fowler executed to Donahoo a security deed reconveying Tract B. On September 22, 1960, Fowler conveyed his remaining interest in Tract B to Donahoo by quitclaim deed, leaving Fowler as the sole owner of Tract A and Donahoo as the sole owner of Tract B. On October 3, 1960, Fowler conveyed [799] Tract A to appellant’s predecessor in title, and on October 4, 1960, Donahoo conveyed Tract B to appellee. Some seven years later, on August 5, 1967, Donahoo executed a second warranty deed conveying Tract B to appellee and purporting to correct the description in the earlier deed. Appellant filed his complaint in which he alleged that Tract B, as described in both deeds from Donahoo to appellee, overlapped Tract A; and that appellee claimed title to the overlapped area, although she had no right, interest or title to it. Appellant prayed that the court declare that appellant alone had title to the overlapped area. Appellee filed her answer in which she denied the essential elements of the complaint and asserted that she had received from Donahoo all of Tract B, including the overlapped area, and that Donahoo had received the same from Fowler as the common grantor of both Tract A and Tract B. Appellee further asserted that she was entitled to the overlapped area by reason of adverse possession under color of title for more than seven years. When the case came on for trial, appellant moved for a summary judgment on the ground that the pleadings and a deposition of appellee showed no genuine issue of material fact, and that appellant was entitled to judgment as a matter of law. The motion was denied, and the trial court certified the ruling for immediate review. This appeal is from that order. The only issue before us is whether a jury question exists. We are of the opinion that it does with respect to the true boundary line, and accordingly we do not reach the matter of adverse possession. After carefully reviewing the pleadings and the deposition, we are unable to determine where the correct boundary line lies or which party has the better claim to the overlapped area. The last common grantor of both tracts of land was Fowler, and the key to this puzzle lies in deter [800] mining the extent of his reconveyance of Tract B to Donahoo by security deed and quitclaim deed. Both were executed and recorded prior to the conveyance of Tract A from Fowler to appellant’s predecessor in title. It follows that Fowler could convey to appellant’s predecessor only what remained after his conveyance of Tract B to Donahoo. The burden of proof was on appellant, as the movant for summary judgment, to show that no genuine issue of fact existed. In our opinion he did not carry this burden, and it is for a jury to determine whether the overlapped area was conveyed from Fowler to Donahoo as a part of Tract B, or whether it was conveyed as a part of Tract A to appellant’s predecessor. Submitted February 14, 1972 Decided March 9, 1972. Ronald L. Davis, Ben Lancaster, for appellant. Al D. Tull, for appellees. Judgment affirmed. All the Justices concur, except Gunter, J., who dissents.