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Ward v. Morgan

The defendant failed to show that he established title to certain real property by adverse possession, since he took no action to oust his co-tenants, he did not retain exclusive possession and he did not give actual notice of adverse possession.

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Plaintiffs brought suit against Johnny Ward seeking an accounting with regard to proceeds from the sale of timber. They alleged that, together with Ward, they are co-tenants of the underlying property. Ward answered, asserting he alone owns the property by adverse possession. On cross-motions for summary judgment, the superior court found that plaintiffs and Ward are tenants in common and that plaintiffs are entitled to an accounting. We agree with the superior court that no issue of fact as to adverse possession remains in the case and that plaintiffs are entitled to judgment as a matter of law. See generally Brown v. Williams , 259 Ga. 6 375 SE2d 835 1989. Accordingly, we affirm. Nettie Ward, Johnny Ward’s mother, died in 1988. Ward filed a petition to probate his mother’s will, which purported to give him sole legal title to the property in question. On January 3, 1989, the probate court entered an order of continuance to allow service to be perfected upon Nettie’s heirs. No other action was taken in the probate case until July 12, 2004, when the matter was dismissed under the five year rule. See OCGA § 9-11-41 e.

In the meantime, on September 10, 2003, plaintiffs brought this suit, alleging that Nettie Ward died intestate; that they are Nettie’s heirs and have an undivided interest in the property; and that, therefore, they are entitled to an accounting with regard to the sale of timber from the property. Ward answered, claiming exclusive ownership of the property by adverse possession, and counterclaimed, seeking reimbursement for property taxes and other expenditures.

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