Small v. Irving

Plaintiff's tax title to property did not entitle him to possession, rents, issues or profits during the redemption period; however, plaintiff became entitled after the heir of a previous owner in fee simple title transferred his interest in the property, including his right of redemption, to the plaintiff.

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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.

Small v. Irving

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