After purchasing 77.66 acres of real property in Franklin County in 1999, Robert and Geraldine Sacks filed a petition to quiet title pursuant to OCGA § 23-3-60 et seq. The Martins Thomas Bush Martin and G. Parks Martin, as executor of the estate of James D. Martin filed a counterclaim in which they disputed the inclusion of a triangular-shaped tract containing 5.43 acres within the acreage claimed by the Sackses. After conducting a hearing, the special master appointed by the superior court pursuant to OCGA § 23-3-63 awarded the 5.43-acre tract to the Martins after finding they had established their claim of adverse possession. The superior court adopted the findings and recommendations of the special master and awarded fee simple title in and to the disputed tract to the Martins. The Sackses filed an appeal in which they contend they have title to the disputed parcel by deed or prescription under color of title, thereby trumping the Martinses’ claim under adverse possession; the Martinses’ counterclaim was barred by laches; the legal description of the property in the trial court’s decree was inaccurate; and they were wrongfully deprived of their right to a jury trial. The Martins filed a cross-appeal in which they contend the trial court should have awarded them fee simple title based on their vesting deed; the trial court should have found a boundary was set by acquiescence or oral agreement in 1944; and the trial court erred when it found fee simple title conditionally in the Sackses.
The Sackses received title under a deed from the Smiths in April 1999. The Smiths acquired the property in July 1992 from Watkins who had acquired the property three months earlier from Jordan. The Crumps were several links down from Jordan in the Sackses’ chain of title. The Martins purchased their property in January 1944 from McEntire, who had acquired the property in a sheriff’s tax sale in 1934. Affidavits established that the Martins and the Crumps agreed in 1944 upon a boundary line that put the disputed parcel within the Martin tract, a fence was erected along that line, and a ditch six feet deep and six to eight feet in width was dug along the fence line in 1970 to drain floodwaters from the disputed parcel. Affidavits further showed that the Martins used the property to grow crops through 1949 and to graze cattle thereafter, used dynamite blasting to induce drainage, and fertilized and turned the ground within the fenced area and ditch. The Sackses purchased the property with knowledge of surveys of record showing the fence, they encountered the fence when they walked their property and, after the purchase, had to cut the fence in order to gain access to the disputed parcel. The Crump heirs executed affidavits indicating that Mr. Crump grew and cut hay on the disputed parcel in the late 1940s and early 1950s, and subsequent owners in the Sackses’ chain stated they had posted the property, cut timber from the property and maintained an old road bed along the eastern property line of the tract. A processioning took place in 1991-92 and found the disputed parcel to be within the tract now owned by the Sackses.
