                                 FIFTH DIVISION
                                MCFADDEN, P. J.,
                              RAY and RICKMAN, JJ.

                    NOTICE: Motions for reconsideration must be
                    physically received in our clerk’s office within ten
                    days of the date of decision to be deemed timely filed.
                                http://www.gaappeals.us/rules


                                                                     October 5, 2018




In the Court of Appeals of Georgia
 A18A1366. MERCER v. MERCER.

      MCFADDEN, Presiding Judge.

      This action concerns title to land. The parties are brothers and co-executors of

their mother’s estate. They were jointly bequeathed several tracts of land, subject to

a life estate in their father for the marital dwelling. After their father’s death, they

executed quitclaim deeds to one another conveying fee simple title to all the property

east of a dividing line to one of them and all property west of it to the other. The

marital dwelling is east of the dividing line. The brother holding the eastern share

brought this action seeking a declaratory judgment that his share includes the marital

dwelling. The trial court granted summary judgment in his favor. Because there are

no genuine issues of material fact and he is entitled to judgment as a matter of law,

we affirm.
      1. Facts and procedural posture.

      “On appeal from a grant of summary judgment, we conduct a de novo review

of the evidence to determine if there exists a genuine issue of material fact and

whether the undisputed facts, viewed in the light most favorable to the nonmoving

party, entitle the movant to judgment as a matter of law.” Lafontaine v. Alexander,

343 Ga. App. 672, 673 (808 SE2d 50) (2017) (citation omitted). So viewed, the

evidence shows that Marion Mercer and John Mercer III are brothers who inherited

real property from their mother after her death in 1997. Item VII of the mother’s last

will and testament provided that she bequeathed to her sons “all of the real property

(land) that I may own outright or that I may have an interest therein to be theirs

absolutely and in fee simple, without accountability in the general distribution of my

estate, in equal shares, share and share alike.” Item V of the mother’s last will and

testament also bequeathed to her husband, John Mercer Jr., “for and during his natural

life, the present dwelling where we now live, . . . giving and granting to my said

husband the use and rentals thereof . . . for and during his natural life as aforesaid

with remainder over at his death to my sons [John Mercer III and Marion Mercer] in

equal shares, share and share alike.”



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      As co-executors of their mother’s estate, the Mercer brothers executed two

executors deeds on December 31, 1998. One of the executors deeds conveyed to their

father, John Mercer Jr., approximately two acres of land upon which the marital

dwelling was located, for and during his natural life, with the remainder over to the

brothers as provided in Item V of their mother’s last will and testament. The other

executors deed conveyed to the brothers, absolutely and in fee simple, the various

tracts of real property that had been owned by their mother, less and except the

approximate two acre parcel upon which the marital dwelling was located and in

which a life estate had been conveyed to the father.

      Thereafter, the father passed away and the Mercer brothers agreed to divide the

inherited real property that they owned jointly. The brothers had a survey prepared

to memorialize the agreement and recorded a plat showing a surveyed line of division,

whereby Marion Mercer would receive sole title to the property west of the line and

John Mercer III would receive sole title to the property east of the line. The brothers

executed quitclaim deeds, which incorporated the recorded plat, in favor of each other

to effectuate the agreed upon division of the property. It is undisputed that the

approximate two acre tract upon which the marital dwelling sits is located to the east

of the surveyed line of division.

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      In 2016, John Mercer III filed the instant declaratory judgment action, seeking

a declaration from the trial court that he owns all of the subject property located east

of the surveyed division line, including the approximate two acre tract upon which

the dwelling is situated. Marion Mercer answered the complaint, claiming that he had

not conveyed his interest in that two acre tract pursuant to the quitclaim deed. John

Mercer III filed a motion for summary judgment and a hearing was scheduled. The

trial court granted the motion, finding that the quitclaim deed “clearly and

unequivocally conveyed to Petitioner [John Mercer III] all of the interest of

Respondent Marion Starling Mercer in the real estate lying east of the surveyed

division line as per the agreed upon plat.” Marion Mercer appeals from that summary

judgment ruling.

      2. Grant of summary judgment.

      Marion Mercer enumerates that the trial court erred in granting the motion for

summary judgment because the interest conveyed by him in the quitclaim deed did

not include his interest in the two acre dwelling tract. We disagree.

      The quitclaim deed executed by Marion Mercer provided that in consideration

of a division of property, he had bargained, sold, released and quitclaimed to John

Mercer III

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      all right, title, interest, claim, or demand that [Marion Mercer] has or
      may have had in the following described property, to wit: All that
      certain tract or parcel of land situate, lying and being in Original Land
      Lots No. 299 and 300 in the 6th Land District of Atkinson County,
      Georgia, consisting of all those lands East of the surveyed line of
      division more fully shown on a plat of survey prepared by White
      Surveying Co. for John Mercer [III] & [Marion] Starling Mercer dated
      March 14, 2002, recorded in Plat Book 5, Page 217, in the Office of the
      Clerk of Superior Court of Atknison County, Georgia. The same being
      the entire interest of Grantor [Marion Mercer] in said surveyed lands
      jointly deeded to Grantor [Marion Mercer] and Grantee [John Mercer
      III] pursuant to an Executor’s Deed recorded in Deed Book 146, Page
      201, in the Office of the Clerk of Superior Court of Atkinson County,
      Georgia, and being more particularly divided, depicted, and described
      on said plat of survey. Said plat of survey being incorporated herein for
      all lawful and descriptive purposes.

(Italics supplied.)

      As the trial court correctly found, the plat of survey incorporated into the deed

to describe the property conveyed did not cut “out any parcels east of the division

line.” And as noted above, it is undisputed that the two acre parcel at issue is located

east of the division line. Indeed, nothing in the plain language of the quitclaim deed

or in the incorporated plat excluded the two acre tract of land from the property

conveyed by Marion Mercer to his brother John Mercer III. Rather, it is apparent from

the property description in the quitclaim deed and the recorded plat that it includes

all of the subject property east of the division line.


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      In arguing otherwise, Marion Mercer relies on the language italicized above,

which references the 1998 executors deed in which the two acre tract was excepted

from the property inherited by him and his brother from their mother. However, that

two acre tract was excepted at that time because the brothers’ father had been given

a life interest in the property in order to live in the dwelling. But upon the father’s

death that life interest terminated and fee simple interest in the two acres accrued to

the brothers jointly under the terms of their mother’s will. Thus,

      as we view it, the reference to the prior [executors] deed was not for the
      purpose of giving an identification or description of the property
      conveyed. The identification of the property [was expressly made in the
      quitclaim deed and] was [also] found in a recorded plat, which was
      referred to in [and incorporated into] the [quitclaim] deed. As we
      interpret the [quitclaim] deed, the reference to the prior [executors] deed
      was [merely] for the purpose of showing from what source [Marion
      Mercer’s] title to the land [being conveyed] was derived. It appears to
      be the general rule that when a reference to another deed is made merely
      for the purpose of showing from what source title was derived, it will
      not operate to restrict the description relied upon in the deed from which
      reference is made.

Talmadge v. Adams, 240 Ga. 193, 196 (2) (240 SE2d 9) (1977) (citation omitted).

      So contrary to the appellant’s argument, the reference to the earlier deed

showing the source of his interest in the property did not restrict or alter the express

description of the property as set forth in the quitclaim deed and the incorporated plat.


                                           6
See Armour v. Peek, 271 Ga. 202, 203 (1) (517 SE2d 527) (1999) (reference to an

earlier deed was not for the purpose of describing or identifying the property, because

that was accomplished by reference to certain records, but was only for the purpose

of showing from what source title was derived). Since the plain language of the

quitclaim deed and the incorporated plat did not exclude the two acre tract from the

property being conveyed, the trial court correctly granted summary judgment in favor

of John Mercer III and properly declared that he owns all of the subject “real estate

located east of the agreed upon and surveyed division line as per the [recorded]

plat[.]” See OCGA § 9-11-56 (c) (summary judgment appropriate where the evidence

shows that there is no genuine issue of material fact and the movant is entitled to a

judgment as a matter of law).

       3. Intention of the parties.

       Marion Mercer contends that the trial court failed to analyze the intention of

the parties as to the quitclaim deed at issue. The contention is without merit.

       “The cardinal rule of construction is to ascertain the intention of the parties. If

that intention is clear and it contravenes no rule of law and sufficient words are used

to arrive at the intention, it shall be enforced irrespective of all technical or arbitrary

rules of construction.” OCGA § 13-2-3. In this case, as discussed above, the plain

                                            7
language of the quitclaim deed clearly conveyed Marion Mercer’s interest in the

subject property to John Mercer III. It is apparent from the trial court’s final order,

enforcing that conveyance, that the court properly ascertained the clear intention of

the parties. There is nothing in the trial court’s order to indicate otherwise and the

appellant has not pointed to any evidence showing that the trial court failed to make

the proper considerations. “Accordingly, [the appellant] has not overcome the

presumption of regularity of the court’s proceedings nor otherwise supported his

claim of error.” Cuyler v. Allstate Ins. Co., 284 Ga. App. 409, 411 (2) (643 SE2d 783)

(2007) (citation omitted).

      Judgment affirmed. Rickman, J., concurs. Ray, J., concurs in the judgment

only. *

      THIS OPINION IS PHYSICAL PRECEDENT ONLY. COURT OF

APPEALS RULE 33.2.




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