Scott v. Cain , 90 Ga. 34 ( 1892 )

Judgment affirmed,.

Testimony of Smithhart: Have known lot 130 eighteen years it was never occupied till sold by the sheriff in May, 1878, to B. W.-Scott, who took formal possession and gave me charge as agent. I kept possession and control of it till 1886, returning and paying tax on it for B. W. Scott, and afterwards for E. M. Scott. I removed to Florida in 1887, notifying Scott to get another agent. There was no trespassing on the lot before the summer of 1886. I did not live on the lot, nor build any house, fence or other erection on it. I was personally on it very often, to protect possession, keep off' intruders, etc. Scott’s purchase and my agency and custody were generally known in the neighborhood; no other person exercised any ownership over the land at that time. Returning in 1889, I found that about all the timber on the lot had been boxed for turpentine. This lot was one of those contiguous lots (129,130,136) bought by Scott at same sale, all of which were equally under my supervision for Scott. The question, what building or other erection did Scott maintain on either of the contiguous lots named ? was ruled out by the court, which ruling is assigned as error.

B W. Scott testified: In 1878 Smithhart showed me over the land in issue. I bought it at sheriff’s sale, took deed, entered at once, and put Smithhart in possession as my agent to occupy, pay tax and keep intruders off’; his agency and possession continued without disturbance until 1886, when he notified me of .intrusion and of his intended removal to -Florida. ,His agency was generally known in the neighborhood, especially to the defendant, Cain, who tried to buy it from me, and afterwards from F. M. Scott, plaintiff, who continued Smithhart as agent as he had been for me. Defendant was present at the sheriff’s sale in 1883, and bid for the land. No adverse claim was made, nor any objection to the sale. The taxes have been paid on this land by myself or plaintiff, directly or through Smithhart, from 1878 to 1891. There were three lots in the body overlooked by Smithhart. I had a house on one of them, but not on 130. The plaintiff is my wife, and was present at the sale, though I acted for her.

The sheriff' testified that no objection was made to the sale nor any claim mentioned on either occasion. The plaintiff introduced the tax receipts from 1879 to 1890; ‘also testimony as to the value of the land for rent, etc.

C. P. CrawporH and Hinton & Cutts, for plaintiff. A. C. Pate, for defendant.