NOTICE: This opinion is subject to modification resulting from motions for reconsideration under Supreme Court Rule 27, the Court’s reconsideration, and editorial revisions by the Reporter of Decisions. The version of the opinion published in the Advance Sheets for the Georgia Reports, designated as the “Final Copy,” will replace any prior version on the Court’s website and docket. A bound volume of the Georgia Reports will contain the final and official text of the opinion.
In the Supreme Court of Georgia
Decided: May 13, 2025
S24G0864. BROWNPHIL, LLC v. CUDJOE et al.
COLVIN, Justice.
We granted certiorari in this case to determine whether
“possession of a recorded deed [is] sufficient to establish both the
notice and land-possession requirements of adverse possession
under color of title[.]” On appeal, both parties correctly agree that it
is not. Although a recorded deed may be used to establish notice of
the deed-holder’s claim of ownership, 1 such a deed, by itself, cannot
also establish that the deed-holder possesses the land in the manner
required to confer prescriptive title. Because the Court of Appeals
held otherwise in the case below, see Brownphil, LLC v. Cudjoe, 371
1 The Court of Appeals correctly held that a recorded deed provides notice
of the deedholder’s claim of ownership to the land embraced by the deed, and
the parties do not dispute this point on appeal. See Brownphil, LLC v. Cudjoe,
371 Ga. App. 126, 132 (899 SE2d 761) (2024) (slip opinion) (quoting Poore v.
Poore, 210 Ga. 371, 372 (80 SE2d 294) (1954)).
Ga. App. 126 (899 SE2d 761) (2024) (“Brownphil I”), we vacate that
decision and remand for further proceedings consistent with this
opinion.
1. The facts of this case are not in dispute. Appellant
Brownphil, LLC (“Brownphil”) and Appellee Peter Kofi Amihere
Cudjoe have competing claims to ownership of an undeveloped lot
located in Bibb County (the “Property”). Though each party
possesses a deed to the Property, Cudjoe has conceded that his deed
is not supported by a continuous chain of title. In recognition that
his deed is insufficient to establish his ownership, Cudjoe claims
that he acquired title to the Property by an alternative means:
adverse possession under color of title. Brownphil, by contrast,
argues that Cudjoe had insufficient involvement with the land to
establish adverse possession and instead claims that it owns the
Property by virtue of its deed and an unbroken chain of title.2
Brownphil brought a quiet title action, and the parties filed
2 A complete description of the facts of this case and its procedural
history is found in Brownphil I. See Brownphil I, 371 Ga. App. at 127-130.
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cross-motions for summary judgment. The trial court granted
Cudjoe’s motion and denied Brownphil’s motion. Brownphil
appealed, and the Court of Appeals affirmed. Brownphil sought
certiorari from this court, which we granted,3 and the case was
argued orally in December 2024. Because the parties now correctly
agree that a recorded deed is insufficient to establish the landpossession requirement of adverse possession under color of title, we
review the relevant law before turning to the Court of Appeals’s
decision below.
2. Under certain circumstances, adverse possession of land can
confer a type of legitimate ownership interest known as “title by
prescription.” See OCGA § 44-5-160. A claimant may obtain title by
prescription to real property by possessing it adversely in
accordance with statutory requirements for a period of 20 years. See
OCGA § 44-5-163. Title by prescription may be acquired in as few as
seven years, however, if the claimant possesses the property
3 As referenced above, our order granting certiorari asked, “[i]s
possession of a recorded deed sufficient to establish both the notice and landpossession requirements of adverse possession under color of title?”
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adversely “under written evidence of title[.]” OCGA § 44-5-164.
We have explained that, within the meaning of OCGA
§ 44-5-164, the phrase “written evidence of title” means “color of
title,” and that “color of title” is “any writing, upon its face professing
to pass title, but which does not do it, either from a want of title in
the person making it, or from the defective conveyance that is
used[.]” Warlick v. Rome Loan & Finance Co., 194 Ga. 419, 421-422
(22 SE2d 61) (1942) (punctuation omitted) (citing a former version
of OCGA § 44-5-164, then codified as § 85-407). See Herrington v.
Church of the Lord Jesus Christ, 222 Ga. 542, 546 (2) (150 SE2d 805)
(1966) (same). See also Georgia Power Co. v. Irvin, 267 Ga. 760, 765
(1) (c) (482 SE2d 362) (1997) (defining “color of title”); Stallings v.
Britt, 204 Ga. 250, 255 (3) (49 SE2d 517) (1948) (equating “written
evidence of title” with “color of title” within the meaning of the
statute). For this reason, our use of the phrase “adverse possession
under color of title” in the question presented refers to the process
of establishing title by prescription under written evidence of title
as provided in OCGA § 44-5-164 and its predecessors, consistent
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with our longstanding practice of using these phrases in this
manner. See, e.g., Washington v. Brown, 290 Ga. 477, 479 (722 SE2d
65) (2012) (referring to the process of establishing prescriptive title
under OCGA § 44-5-164 as adverse possession under color of title);
Gigger v. White, 277 Ga. 68, 68, 70 (586 SE2d 242) (2003) (same);
Kemp v. Parks, 227 Ga. 319, 319, 321 (180 SE2d 350) (1971) (same);
Wooding v. Blanton, 112 Ga. 509, 509 (37 SE 720) (1900) (using the
phrase “possession under color of title”). Brownphil does not dispute
that Cudjoe’s deed, though defective, constitutes color of title;
rather, it argues that Cudjoe has failed to establish that he ever
possessed the Property adversely.
OCGA § 44-5-161 (a) sets forth the characteristics that
“possession” of land must have “to be the foundation of prescriptive
title[.]”4 OCGA § 44-5-161. In doing so, the statute takes as given
4 OCGA § 44-5-161 (a) states in full:
(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
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that there can be no adverse possession without “possession” of the
disputed property; indeed, such a proposition is axiomatic. See
OCGA § 44-5-160 (“Title by prescription is the right to property
which a possessor acquires by reason of the continuance of his
possession for a period of time fixed by law.”). See also McBee v.
Aspire at West Midtown Apartments, L.P., 302 Ga. 662, 666 (3) (807
SE2d 455) (2017) (describing adverse possession as “the type of
possession that can ripen into title by prescription”); Yundt v.
Davison, 186 Ga. 179, 179 (2) (197 SE 248) (1938) (“The foundation
of prescription is possession.”). But OCGA § 44-5-161 does not define
“possession,” and so we look at the broader statutory context for the
meaning of that term as it is used there.
To that end, other provisions in Article 7 of Chapter 5 of Title
44 provide some guidance. See OCGA §§ 44-5-165, 44-5-166. These
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).
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provisions recognize two types of possession: actual possession, see
OCGA § 44-5-165, and constructive possession, see OCGA
§ 44-5-166, as explained further below.
OCGA § 44-5-165 states 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.” OCGA § 44-5-165. See also McBee, 302 Ga. at 667 (“The
word ‘possession’ ‘denotes the corporeal control of property, a state
of actual occupancy, evidenced by things capable of being seen by
the eye or of being ascertained by the use of the primary senses.’”
(quoting Burgin v. Moye, 212 Ga. 370, 374 (3) (93 SE2d 9) (1956)).
By contrast, OCGA § 44-5-166 states in relevant part that
“[c]onstructive possession of lands exists where a person who has
paper title to a tract of land is in actual possession of only a part of
such tract. In such case, his or her possession shall be construed to
extend to the boundary of such tract.” OCGA § 44-5-166 (a). See G.S.
Baxter & Co. v. Wetherington, 128 Ga. 801, 803 (58 SE 467) (1907)
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(noting that “the rule of the Code” is “that actual possession of a part
of a tract of land by one having paper title to the whole extends by
construction over the whole tract[.]”). See also OCGA § 44-5-167
(“Possession under a duly recorded deed shall be construed to extend
to all the contiguous property embraced in such deed.”). Thus, as we
explained in Gordon v. Georgia Kraft Co., 217 Ga. 500 (123 SE2d
540) (1962), where two claimants, A and B, dispute ownership of the
northern half of a lot, and one claimant, B, actually possesses the
southern half of the lot and has color of title by virtue of a deed
encompassing the whole lot, Claimant B constructively possesses
the whole lot, including the disputed northern half. See Gordon, 217
Ga. at 508 (8) (explaining that Claimant B’s actual possession of the
southern half of the lot, when coupled with his color of title to the
whole lot, constitutes constructive possession of the whole lot, and
that Claimant B’s recorded deed provides notice to Claimant A and
others that Claimant B claims ownership over the disputed northern
half of the lot).
Because constructive possession under OCGA § 44-5-166
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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. See Sewell v. Sprayberry, 186 Ga. 1, 7 (2) (196 SE 796) (1938)
(“Before one can establish title by reason of possession under color
of title, he must show, first, that the writing which he claims as color
of title purports to confer title upon the possessor; second, actual
possession of some portion of the tract; and third, a claim of
ownership over the portion not held in actual possession.” (emphasis
supplied)). See also Roughton v. Roughton, 178 Ga. 367, 375 (173 SE
673) (1934) (“Nor could the deed here referred to be considered as a
foundation of prescription under color of title, it not appearing that
there was any possession under it. In order that prescription may
ripen under color of title, ‘there must not only be color of title but
possession under it.’” (quoting Turner v. Neisler, 141 Ga. 27, 29 (80
SE 461) (1913)).
Though these provisions do not provide a comprehensive
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definition of “possession,” they establish the framework necessary to
review the Court of Appeals’s decision below and to address the
question presented in this case: whether a recorded deed is sufficient
to establish the land-possession requirement of adverse possession
under color of title. See Efficiency Lodge, Inc. v. Nelson, 316 Ga. 551,
559-562 (2) (b) (i) (889 SE2d 789) (2023) (explaining 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,” but stopping short of “defin[ing] the
contours of possession for all purposes” because such definition was
not necessary to resolve the issue before the Court).
3. (a) In its analysis of the case, the Court of Appeals assumed
without deciding that Cudjoe’s maintenance of the Property and
payment of property taxes was insufficient to establish actual
possession. See Brownphil I, 371 Ga. App. at 132. But it then
appeared to hold that Cudjoe’s recorded deed established adverse
constructive possession by providing notice and notoriety, stating:
[P]ossession of a recorded deed has been held to be
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sufficient as not only “notice . . . to the world of the
[possessor’s] claim of title,” Poore v. Poore, 210 Ga. 371,
372, (80 SE2d 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 SE2d 540) (1962) (public recordation
of deed provides notoriety for adverse constructive
possession).
Id. at 132 (emphasis and some brackets supplied). Based only on this
purported constructive possession — there being no other possession
mentioned in its analysis — the Court of Appeals then held that “the
uncontroverted evidence showed that possession by Cudjoe under
[his recorded deed], lasted significantly more than 7 years, was open
and notorious, exclusive, adverse, and was not tainted by fraud.” Id.
It accordingly concluded that Cudjoe had established ownership of
the Property by prescription (i.e., by adverse possession under color
of title), and affirmed the ruling of the trial court. Id.
(b) As we have already explained above, however, establishing
constructive 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. See
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Sec. 2 (a), supra. Accordingly, it was error for the Court of Appeals
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. As referenced above, 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). 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. Id.
We therefore answer the question presented in the negative: a
recorded deed, by itself, cannot serve to establish both the notice and
the land-possession requirements of adverse possession by color of
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title. Recall that Cudjoe pursued a claim of ownership under adverse
possession precisely because he recognized his deed was defective
and therefore insufficient to establish his ownership of the Property.
To hold that this same deed, which was recorded more than seven
years ago, established adverse possession all by itself, would mean
that Cudjoe’s deed was sufficient to establish ownership after all.
This cannot be.
Because the Court of Appeals failed to analyze whether Cudjoe
actually possessed the Property or any portion of it, 5 we vacate the
Court of Appeals’s decision in Brownphil I and remand for
consideration of this issue.
Judgment vacated and case remanded. Peterson, CJ, Warren,
PJ, and Bethel, Ellington, McMillian, LaGrua, and Pinson, JJ,
concur.
5 We decline to adjudicate this issue in the first instance, as requested
by Cudjoe in his brief and at oral argument, because it is outside the scope of
the question we posed when granting certiorari. See Whitaker Farms, LLC v.
Fitzgerald Fruit Farms, LLC, 320 Ga. 208, 217 (2) (d) n.7 (908 SE2d 531) (2024)
(citing Supreme Court Rule 45).
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