BROWNPHIL LLC v. CUDJOE (2026)

In Brownphil, LLC. v. Cudjoe, 371 Ga. App. 126, 899 S.E.2d 761 (2024) (“Brownphil I”), this Court affirmed the trial court's denial of summary judgment to Brownphil, LLC in its action to quiet title to certain property located in Bibb County and granted summary judgment to Peter Kofi Amihere Cudjoe, Grier Construction Company, and unknown parties with any interest in the subject property (collectively “Cudjoe”). Id. at 132-133, 899 S.E.2d 761. We further declared Cudjoe the fee simple owner of the subject property, along with removing all clouds upon the subject title. Id.

Our Supreme Court granted certiorari to consider “whether possession of a recorded deed is sufficient to establish both the notice and land-possession requirements of adverse possession under color of title.” Brownphil, LLC. v. Cudjoe et al., 321 Ga. 548, 915 S.E.2d 860 (2025) (punctuation omitted). The Court concluded that “[a]lthough a recorded deed may be used to establish notice of the deed-holder's claim of ownership, such a deed, by itself, cannot also establish that the deed-holder possesses the land in the manner required to confer prescriptive title.” Id. at 548-49, 915 S.E.2d 860 (footnote omitted). Noting that our opinion in Brownphil I found otherwise in its analysis, the Supreme Court vacated our opinion and remanded the case back to this Court with direction to “analyze whether Cudjoe actually possessed the Property or any portion of it[.]” Brownphil, 321 Ga. at 553 (2) (b), 915 S.E.2d 860.

1. The undisputed facts are more fully set forth in Brownphil I, but as relevant here demonstrate that:

[T]he land at issue is an empty lot located at 988 Linden Avenue (“the Property”) in Bibb County, more specifically, Macon, Georgia. The chain of title reflects that the Property was conveyed to Earnest and Louise McClendon by warranty deed dated 1958 and recorded in the Bibb County deeds record. In December 1985, the McClendons conveyed the Property to Grier Construction Company by warranty deed which was also recorded in the county deeds record. Grier Construction, which was owned and operated by Cudjoe's grandfather, Freddie L. Grier, is not registered as a corporation with the Georgia Secretary of State, nor is the business registered with Bibb County. In 1997, Freddie Grier executed a deed to the Property to Cudjoe, who then recorded the deed in 2003.

Both McClendons died in 1992 — Louise in January, intestate, and Earnest in March, testate. The couple's surviving heirs were two adult children, and a predeceased child's three adult children. Louise's estate was administered by one of her children, and the estate of Earnest was never administered. In 2019, Brownphil purchased the Property from the McClendon estate administrator and heirs by quitclaim deed and recorded such deed in the county deed records.

However, starting in 1997, and acting under the belief that he owned the property that had been deeded to him by his grandfather, Cudjoe paid the property taxes and maintained the Property, which he averred included “arrang[ing] for the mowing of the grass on the property and any other maintenance.” Apparently, there were failed negotiations to purchase the Property during 2016-2018, although it is unclear from the record who was involved in the discussions with Cudjoe.

Brownphil I, 371 Ga. App. at 127-128, 899 S.E.2d 761.

Brownphil filed a petition to quiet title, and the Special Master appointed by the trial court issued a report in which it concluded that Cudjoe had failed to establish a claim for adverse possession, and that Brownphil was the fee simple owner of the property. The trial court initially adopted the Special Master's report, but it later rescinded its order and, upon cross motions for summary judgment, the trial court granted summary judgment to Cudjoe and denied Brownphil's motion. Brownphil I, 371 Ga. App. at 130, 899 S.E.2d 761.

The trial court held that even if the chain of title was unclear, Cudjoe had acquired prescriptive title to the Property. It concluded that Cudjoe had prescriptive title pursuant to OCGA § 44-5-161 1, reasoning that whether the county deed records had conferred good title or not, Cudjoe had acted as if he had title to the Property, and additionally his possession, dominion, and control was public, continuous, exclusive, uninterrupted, and peaceable. The trial court further found that Cudjoe had separately acquired title to the Property pursuant to OCGA § 44-5-164 2 — prescription under color of title — in that he had possessed the property under written evidence of title for a period of seven (7) years.

Brownphil I, 371 Ga. App. at 130, 899 S.E.2d 761 (quotation marks omitted).

Upon appeal to this Court, and in considering whether Cudjoe had adversely possessed the property, we reasoned that even accepting that

Cudjoe's maintenance of the Property and payment of property taxes were not sufficient to establish actual possession, possession of a recorded deed has been held to be sufficient as not only “notice ․ to the world of the [possessor's] claim of title,” Poore v. Poore, 210 Ga. 371, 372, 80 S.E.2d 294 (1954), but also “the element of notoriety essential to its being adverse.” (Citations and punctuation omitted.) Gordon v. Ga. Kraft Co., 217 Ga. 500, 508 (8), 123 S.E.2d 540 (1962) (public recordation of deed provides notoriety for adverse constructive possession).

Brownphil I, 371 Ga. App. at 132, 899 S.E.2d 761. In affirming the trial court, we then concluded that

the uncontroverted evidence showed that possession by Cudjoe under the 1997 claim of title, which was recorded in 2003, lasted significantly more than seven years, was open and notorious, exclusive, adverse, peaceable, and was not tainted by fraud. Cudjoe's claim of title therefore ripened into prescriptive title under OCGA § 44-5-161 as a matter of law. Thus, the trial court did not err in denying Brownphil's motion for summary judgment and finding that Cudjoe had established ownership of the Property by prescription.

Id. at 132-33, 899 S.E.2d 761.

Following the grant of certiorari, the Supreme Court instructed that it was error for this Court

to hold that Cudjoe constructively possessed the Property without analyzing whether he actually possessed any part of it. And to the extent the Court of Appeals relied on Gordon for the proposition that public recordation of a deed establishes constructive possession, it misapplied that case․ Gordon explained that under the Georgia Code, actual possession of a portion of a tract of land within the bounds of a deed constitutes constructive possession of the whole tract and further that the recorded deed provides notice of the deedholder's claim of ownership to those portions of the tract not actually possessed. See Gordon, 217 Ga. at 508 (8), 123 S.E.2d 540[ ]. But Gordon does not say that possession of a recorded deed alone constitutes constructive possession; it says merely that where there is such constructive possession, the deed serves as notice to others of the possessor's claim.

Brownphil, 321 Ga. at 553 (3) (b), 915 S.E.2d 860. The Court further noted that “[b]ecause constructive possession under OCGA § 44-5-166 requires actual possession of at least some portion of the property encompassed by the deed, it follows that there can be no adverse possession under color of title of the disputed property without at least some actual possession of property within the bounds of the deed.” Id. at 551-52 (2), 915 S.E.2d 860.

2. We thus consider whether the trial court erred in granting Cudjoe summary judgment upon concluding that Cudjoe owned the property by prescription under color of title. Central to that consideration is whether there is evidence that Cudjoe actually possessed any portion of the property for purposes of adverse possession. We are reminded that on appeal from a ruling on a motion for summary judgment, this Court conducts a de novo review, “view[ing] the evidence, and all reasonable inferences drawn therefrom, in the light most favorable to the nonmovant.” Johnson Street Props., LLC v. Clure, 302 Ga. 51, 52, 805 S.E.2d 60 (2017) (quotation marks omitted). Moreover, in such a posture,

the non-movant is not required to produce evidence demanding judgment for that party, but only to present evidence which raises a material issue of fact․ Where the evidence on motion for summary judgment is ambiguous or doubtful, the party opposing the motion must be given the benefit of all reasonable doubts and of all favorable inferences and such evidence construed most favorably to the party opposing the motion. Furthermore, while a movant's evidence is to be carefully scrutinized, a respondent's evidence is to be treated with indulgence.

Layfield v. Dept. of Trans., 280 Ga. 848, 850, 632 S.E.2d 135 (2006).

Brownphil does not dispute that Cudjoe's deed constitutes color of title. Rather, it argues that Cudjoe has failed to establish that he ever possessed the Property adversely.³ “[C]onstructive possession to a tract of land under OCGA § 44-5-166 requires a deed encompassing that tract and actual possession of at least some portion of the land within the bounds of the deed,” and “a recorded deed, by itself, cannot serve to establish both the notice and the land-possession requirements of adverse possession by color of title.” Brownphil, 321 Ga. at 553 (3) (b), 915 S.E.2d 860. See Efficiency Lodge, Inc. v. Neason, 316 Ga. 551, 559-562 (2) (b) (i), 889 S.E.2d 789 (2023) (noting that “possession,” as a general matter, “involves a physical relationship with and the exercise of sufficient acts of ownership and control with respect to the subject property”). See also Walker v. Sapelo Island Heritage Authority, 285 Ga. 194, 198 (2), 674 S.E.2d 925 (2009) (explaining that, in relation to their adverse possession claim, “[c]ontinuous farming of property, the erection of fences, and the construction of buildings are indicia of possession”) (citations and punctuation omitted).

Here, Cudjoe averred that from 1997, when

my grandfather intended to deed the property to me by executing the deed ․, it was my understanding that I owned the property. I have been responsible for the tax payments on the property, and I (or someone on my behalf) have made those payments when they came due. Bibb County accepted those payments when made. I was ultimately responsible for the maintenance and upkeep of the property. I routinely arranged for the mowing of grass on the property and other maintenance. No other person or entity has exercised any form of possession, dominion, or control of the property since 1997 when it was deeded to me.

Although the public recordation of the 1997 deed constituted notice of an adverse claim, see generally Gordon, 217 Ga. at 508, 123 S.E.2d 540 (public recordation of deed provides notoriety for adverse constructive possession), “[p]ayments of taxes are insufficient to establish prescriptive title, however long continued, even though accompanied by constant assertions of title.” Mark Turner Properties v. Evans, 274 Ga. 547, 549 (2), 554 S.E.2d 492 (2001) (citation and punctuation omitted). Moreover, the fact that Cudjoe assumed responsibility for maintaining the property, including arranging for someone to occasionally “mow and occasionally clean up the area, ․ is not generally sufficient to constitute actual possession, much less to require such conclusion as a matter of law.” Friendship Bapt. Church v. West, 265 Ga. 745, 746, 462 S.E.2d 618 (1995). See Double “D” Bar “C” Ranch v. Bell, 283 Ga. 386, 387-88 (2), 658 S.E.2d 635 (2008) (“Appellant adduced no evidence that it has cultivated or built upon the land or enclosed or excluded others from the entire property, and the special master correctly concluded that appellant's posting of a few signs forbidding trespassing and driving off an occasional trespasser was insufficient to show possession. Although appellant points to its payment of property taxes on the parcel since 1997, such payment alone is insufficient to establish prescriptive title.”) (citations omitted). Compare Armour v. Peek, 271 Ga. 202, 204 (3), 517 S.E.2d 527 (1999) (where “cultivating garden plots, harvesting trees, creating and maintaining roads, hunting, and excluding members of the Armour family from use of the property” was evidence of sufficiently open possession of land to give notice of adverse claim).

“While adverse possession is usually a mixed question of law and fact—whether the facts exist which constitute adverse possession, is for the jury to judge. Whether, assuming the facts proven to be true, they constitute adverse possession, is for the court to decide.”Ga. Power Co. v. Irvin, 267 Ga. 760, 766 (2), 482 S.E.2d 362 (1997) (citation and punctuation omitted). Given the absence of evidence sufficient to establish Cudjoe's actual possession of the property and that, as a result, he acquired the title to the property by prescription, the trial court erred in granting summary judgment to Cudjoe as the fee simple owner of the subject property.

We thus reverse the judgment and remand the case for further proceedings consistent with this opinion.

Judgment reversed and case remanded with direction.

FOOTNOTES

1.   (a) In order for possession to be the foundation of prescriptive title, it:(1) Must be in the right of the possessor and not of another;(2) Must not have originated in fraud except as provided in Code Section 44-5-162;(3) Must be public, continuous, exclusive, uninterrupted, and peaceable; and(4) Must be accompanied by a claim of right.OCGA § 44-5-161 (a) (1)-(4).

2.   Possession of real property under written evidence of title in conformance with the requirements of Code Section 44-5-161 for a period of seven years shall confer good title by prescription to the property against everyone except the state and those persons laboring under the disabilities stated in Code Section 44-5-170, provided that, if the written title is forged or fraudulent and if the person claiming adverse possession had actual notice of such forgery or fraud when he commenced his possession, no prescription may be based on such possession.OCGA § 44-5-164.

3.   OCGA § 44-5-165, instructs, in relevant part, that “[a]ctual possession of lands may be evidenced by enclosure, cultivation, or any use and occupation of the lands which is so notorious as to attract the attention of every adverse claimant and so exclusive as to prevent actual occupation by another.”

Barnes, Presiding Judge.

Watkins, J., and Senior Judge C. Andrew Fuller, concur.