Segars v. Crump , 177 Ga. 665 ( 1933 )

Atkinson, J.

1. If a person dies while in possession of land under a bona fide claim of right thereto, such possession at the time of his death is prima facie evidence of title in him, that will support an action of complaint for land and mesne profits instituted by the administrator of such deceased person against a third person who after the death of the intestate entered possession adversely and not under a better title. Wolfe v. Baxter, 86 Ga. 705 (13 S. E. 18); Bagley v. Kennedy, 85 Ga. 703 (11 S. E. 1091); Buckner v. Chambliss, 30 Ga. 652; Boynton v. Brown, 67 Ga. 396; Dorris v. Dorris, 149 Ga. 170 (99 S. E. 532). See also Watkins v. Nugen, 118 Ga. 375 (45 S. E. 262); Priester v. Melton, 123 Ga. 375 (51 S. E. 330). In the instant case of complaint for land by an administrator of an intestate alleged to have died while owning and in bona fide possession of the land, against a third person who subsequently entered adverse possession of the land without any title or right of possession, the petition set forth a cause of action and was not subject to general demurrer.

2. Ordinarily in actions of statutory complaint for land the plaintiff should attach to the petition an abstract of title. Civil Code, § 5580. The object of the abstract is not to show title in the plaintiff on the face of the pleadings, but only to give notice of what will be relied upon at the trial. Yonn v. Pittman, 82 Ga. 637 (9 S. E. 667).

(a.) While the petition in the instant ease does not show a separate paper containing an abstract of title, the allegations sufficiently show a claim of title on which the plaintiff relies for a recovery. In these circumstances the petition is not subject to special demurrer on the ground of the failure of the plaintiff to attach an abstract of title. Chancey v. Johnson, 148 Ga. 87 (95 S. E. 975); Allen v. Potter, 153 Ga. 24 (2) (111 S. E. 549).

(b) This ruling refers to different facts, and is not opposed to the rulings in Ragan v. Shiver, 130 Ga. 474 (61 S. E. 1); Chidsey v. Brookes, 130 Ga. 218 (50 S. E. 529, 14 Ann. Cas. 975); Harrington v. Gabby, 52 Ga. 537. Judgment affirmed.

All the Justices concw. D. T. Barnes and George L. Goode, for plaintiff in error. Robert T. Gamp, contra.