Patellis v. Tanner , 199 Ga. 304 ( 1945 )

1. A deed of prior date loses its priority over a subsequent deed from the same vendor, which is based on a valuable consideration, is taken without notice of the existence of the first, and is the first to go to record in the office of the clerk of the superior court of the county where the land lies.

(a) Even if the vendee in the second deed took with notice, a grantee of the latter who took without notice would be protected.

(b) A presumption of good faith attaches to one who is a purchaser for value, which remains until overcome by proof.

2. One who relies on a prescriptive title has the burden of establishing it.

(a) One of the essentials is that the possession must, for the period required, be continuous and uninterrupted.

(b) The possession, if held under a claim of right, is in law referred to the title, actual or supposed, under which the right of possession is claimed.

3. Where, in complaint for land, the plaintiff sets forth the muniments of title under which she claims, and it appears therefrom that she had no claim prior to February 7, 1942, she is not entitled to recover mesne profits for each of the years 1938 to 1941 inclusive, although her petition contained a prayer to that effect which was not demurred to.

4. One who in a suit to recover land claims mesne profits has the burden of producing evidence to show that he is entitled to some amount. When there is a failure to do this, it is not cause for new trial that the judge failed to submit to the jury the question of mesne profits.

Nos. 15131, 15142. APRIL 5, 1945. REHEARING DENIED MAY 2, 1945. This suit, returnable to the March term, 1942, of Coffee superior court, was brought by Mrs. Minnie Wilcox Patellis against A. J. Tanner and Mrs. Melvin L. Davis, to recover that portion of lot of land number 451 in the 6th land district of Coffee County lying on the south side of Dry Creek, and being 200 acres, more or less. It is admitted that both the plaintiff and the defendants claim under a common grantor, to wit, Moses J. Kirkland Sr.

This controversy was before this court at the January term, 1944, on an exception to a ruling sustaining a general demurrer to the petition. The judgment was reversed; it being ruled that the allegations of the petition, if proved, would entitle the plaintiff to prevail as to a portion of the land sued for.Patellis v. Tanner, 197 Ga. 471 (29 S.E.2d 419). The muniments of title on which the plaintiff relied were set forth in her pleadings and are shown in the report of the case on its former appearance. On the subsequent trial before a jury, the plaintiff made material amendments to her petition.

(a) The plaintiff introduced in evidence the following deeds: one from Moses J. Kirkland Sr. to M. J. Kirkland Jr. and Margery W. Kirkland, dated May 11, 1903, conveying the land involved to the latter, during their natural lives, and then to their heirs at law, reciting a named consideration, and recorded September 30, 1908; one from M. J. Kirkland Jr. to Margery W. Kirkland, dated September 30, 1908, reciting a named consideration, recorded September 30, 1908, conveying an undivided half interest in the same land; and certain deeds, dated at various times in February, 1942, from persons shown to be all of the heirs at law of M. J. Kirkland Jr. and Margery W. Kirkland, to the plaintiff, each deed reciting a consideration of one dollar, and each describing the lands sued for.

(b) The defendants introduced the following deeds: warranty deed from Moses J. Kirkland Sr. to Moses J. Kirkland Jr., dated April 23, 1881, recorded February 9, 1883, reciting a consideration of $200, and conveying the same 200 acres; deed from M. J. Kirkland Jr. to Margery Kirkland, dated July 13, 1889, recorded February 11, 1942, conveying the same land; warranty deed from Mrs. Margery W. Kirkland to G. S. Tanner, dated December 29, 1936, recorded December 30, 1936, reciting a consideration of $500, and conveying 150 acres, being all of lot 451 in the 6th district lying on the south side of Dry Creek, except 50 acres in the southeast corner, the said 50 acres being definitely described. Immediately following the description is the following: "the same being part of the lands conveyed by Moses J. Kirkland to Margery W. Kirkland and M. J. Kirkland Jr., said deed being dated May 11, 1903, and redated (recorded) September 30, 1908, recorded in Deed Book No. 25, page 45, in the office of the clerk of superior court of Coffee County, Georgia. The land herein conveyed is all of the land referred to and described in deed from M. J. Kirkland Jr. to Margery W. Kirkland as recorded in the above-stated paragraph, reference to which said deed in Book No. 25, page 45, is being referred to for a better description of the land herein, except that this deed conveys the entire interest, while the deed referred to recorded in Book 25, page 45 conveys one-half interest. The entire interest is herein conveyed." The defendants also introduced a warranty deed from G. S. Tanner to A. J. Tanner and Mrs. Eliza Smith, dated January 6, 1938, for a consideration of $500. recorded January 20, 1938, conveying the entire 200 acres; also a stipulation that there was a deed from Mrs. Melvin Davis, shown to be the same person as Mrs. Eliza Smith, to A. J. Tanner to her half interest in the property; also various tax deeds to the 50-acre tract, sold under tax fi. fas. against "Mrs. M. J. Kirkland," purporting to put title in A. J. Tanner. Some of these tax deeds (following the description of the premises) contained the further recital: "and being the same lands conveyed by Moses J. Kirkland to Mrs. Margery W. Kirkland and M. J. Kirkland Jr. by deed dated May 11, 1903, and recorded in Deed Book 25, page 44, and by deed from M. J. Kirkland Jr. to Margery W. Kirkland, dated September 30, 1908, recorded in Deed Book 25, page 45." With reference to these tax deeds, the following admissions were made by the plaintiff: "We admit in the record, for the purpose of the record, that those deeds were based upon tax executions issued by the proper authorities of Coffee County against Mrs. M. J. Kirkland, and were levied upon the property, and were duly advertised."

(c) The defendants also introduced in evidence the following paragraphs of the plaintiff's original petition, which by amendment had been stricken:

"4. Petitioner claims said land and timber thereon and the title thereto under deeds of conveyance described in the following paragraphs of this petition:

"5. Warranty deed from Moses J. Kirkland Sr. to M. J. Kirkland Jr., dated April 23, 1881, reciting a consideration of $200, recorded in the office of the clerk of superior court of Coffee County, Georgia, on February 9, 1883, on Deed Book E, page 201, witnessed by J. G. Tanner and A. F. Tanner, with a map of said lands drawn on the back of said deed and referred to in the description thereof, and conveying the same lands as described in deed described in paragraph 3 of this petition, reference to which is made.

"6. Deed of conveyance from Moses J. Kirkland Jr. (the same person as M. J. Kirkland Jr. referred to in deed described in paragraph 5 of this petition) to Mrs. Margery W. Kirkland, dated 13th day of July, 1889, reciting a consideration of natural love and affection he has for his wife, and recorded in the office of clerk of superior court of Coffee County, Georgia, on the 11th day of February, 1942, witnessed by Joel Lott and Joel Wilcox, J. P., and conveying the same lands described in paragraph 3 of this petition. Recorded in Deed Book 63, page 466."

(d) The plaintiff introduced in evidence a turpentine lease from G. S. Tanner to Andrew Tanner, dated December 29, 1936, reciting a consideration of $400, leasing turpentine privileges for five years from January 1, 1937, on 150 acres of the land; also a turpentine lease from G. S. Tanner to Andrew J. Tanner and Harry Smith, dated February 5, 1937, reciting a consideration of $150, leasing all the timber for turpentine purposes for a term of five years on the other 50 acres, to wit, the 50 acres covered by the deeds. The first of these leases, by way of further description of the property, described it as all the property deeded by M. J. Kirkland Jr. to Margery W. Kirkland, dated May 11, 1903, except a certain described 50 acres. The second lease contained similar references, with an additional one to the deed from M. J. Kirkland Jr. to Margery W. Kirkland, dated September 30, 1908, recorded in Deed Book 25, page 45.

(e) As to the possession of the property, the evidence was as follows:

Mrs. Patellis, a witness in her own behalf, testified: "They [M. J. Kirkland Jr. and his wife Margery] moved from there first before I was born. They moved to Nicholls. I was born in 1901, . . I do not know of my own knowledge how long Mose Kirkland and his wife lived on that land. There were improvements on the property. It was cultivated. . . Then in 1889 Moses Kirkland Jr. gave the property to Margery Kirkland. . . They never did go back to the place to live after I was born. They rented it, yes, Margery and Mose Jr. . . They began before I was born, and continued as long as there were houses on the place. No, it lay out a few years because she couldn't get a good tenant that would pay her enough to pay the taxes, and I paid the taxes on it for several years, because I had other obligations with the family, and I quit paying the taxes, and then it sold for taxes. As to whether Mose Kirkland Jr. and his wife were in possession of the property, either by themselves or by their tenants, for long before I was born right on down until the houses burned — they wasn't on the property when the house burned. Yes, they were either there by themselves or tenants except the few years they may have let it lie out. That started before I was born in 1901, and I don't know how long before 1901."

Mrs. G. W. Heirs testified for the plaintiff: "I was born in 1886. I knew Mose J. Kirkland Jr. and his wife, Margery Kirkland. They were my father and mother. I know that tract of land known as the Mose Kirkland or Margery Kirkland place out on lot 451 south of Dry Creek. Yes, I lived on that land. I suppose I lived on it from the time I was six or several [seven] years old till I was fourteen, then moved to Nicholls. They (my parents) lived in a dwelling house out there. There was a fence around the fields. After we moved into Nicholls my parents continued to cultivate the land out there through themselves or tenants. I don't know how many years; it has been so long, I couldn't say. I am most afraid to say how many years after that because I don't remember. It was not very many years. The buildings on the place were almost torn down — they built a new house and it was almost torn down. . . As to how many years, all told, that my parents lived, and had actual possession of that property and lived on it, well, from the time I was born up until I was fourteen years old; they moved away from the farm, but they still owned it, and still held possession through tenants, but I don't know how long. As to whether my mother, Mrs. Margery W. Kirkland, continued to control the turpentine timber up until just before her death, I don't think she did. I don't know."

Alfred Meeks, sworn for the plaintiff, testified as follows: "I live in Nicholls. I have lived there about 31 years right in town. My age is 71. I know this place being litigated over, known as the Mose Kirkland Jr. and Margery Kirkland place, the south part of lot 451 south of Dry Creek. I don't know the boundary lines around there, just exactly where the lines are. I have known that place, I don't recollect just plime blank, somewhere in the '80's. I have been there when they used to go to school right close by, and I have gone over this place a lot of times. Mose Kirkland Jr. and his wife and children were living on the place then. They had a residence on it, and cultivated a farm on it. I couldn't say plime blank approximately how long they lived on that place and cultivated the lands; if I ain't mistaken, until after I was grown and married. That was in ``95. They first moved to Bickley, and went in the store with somebody down there in Ware County. After they moved off the place they still had tenants on it — right on several years. I couldn't say just exactly how long. I suppose 19 and something."

A. J. Meeks, sworn for the plaintiff, testified: "My age at this time is 67. I live in Nicholls. I have lived there all my life, right in that community. I know the tract involved in this suit on lot 451 in the 6th district south of Dry Creek. I knew it during the time Mose Kirkland Jr. and his wife lived there. They lived there — I think he built up some time in the ``80's and lived there until ``92 or ``93, and moved to Bickley, and stayed two or three years, and then moved to Nicholls. After they moved back to Nicholls, he kept it rented out. Mose Kirkland Jr. was in charge of it. He was in charge of it when he lived in Nicholls — he kept men put there, and would go back to look after it. I know of the occasion when he died. As to who had charge of it when he died, I couldn't tell you that. There was different folks lived there. I never did work it for turpentine purposes. I tried to rent the timber once from Mrs. Kirkland, and she said she had turned it over to Pressly Kirkland, I believe. That was after the death of Mose. She told me she was still renting it — she had let Pressly have it. They have always called it the Margery Kirkland place. That is the name it was known by in the neighborhood. Away back in ``80's Margery and her husband had possession as far as I know, either by themselves or by their tenants, right on down."

(f) There was uncontradicted evidence from three witnesses that G. S. Tanner, the predecessor in title of the defendant A. J. Tanner, at the time he purchased from Mrs. Margery Kirkland in 1936, knew of the existence of the deed from M. J. Kirkland Jr. to Mrs. Margery Kirkland, that it was produced by Mrs. Kirkland, and that he saw it and heard it read at that time.

At the conclusion of the evidence, the trial court directed a verdict for the plaintiff for 50 acres of the land without mesne profits, and for the defendants for the remaining 150 acres. The plaintiff's motion for new trial as amended was overruled, and she excepted. The defendant Tanner, without filing a motion for new trial, excepted to the ruling directing a verdict for the plaintiff as to the 50 acres, in the following words: "To the ruling of the court directing a verdict in favor of the plaintiff as to said 50 acres, the defendant, Andrew J. Tanner, excepted, here and now excepts by cross-bill, and assigns error thereon in order that, in the event a new trial is ordered, such error may be corrected." 1. The plaintiff's exception will be first considered. It relates to the ownership of the 150 acres, which was all the land sued for except the 50 acres embraced in the tax deeds. Since it is admitted in the pleadings that both parties claim under a common grantor, to wit, Moses J. Kirkland Sr., the ownership must be determined upon the comparative strength of the two claims of title emanating from him. Code, § 33-101; Wallace v. Jones, 93 Ga. 419 (21 S.E. 89). The plaintiff holds conveyances from the ultimate remaindermen in the deed from Kirkland Sr. to M. J. Kirkland Jr. and Margery W. Kirkland during their natural lives, then to their heirs and assigns, which deed was dated May 11, 1903, and recorded September 30, 1908. Standing alone, this showed title in the plaintiff. However, the defendant, A. J. Tanner, relies on a deed from Kirkland Sr. to Moses J. Kirkland Jr., reciting a consideration of $200, dated April 23, 1881, and recorded February 9, 1881; and on subsequent conveyances from Moses J. Kirkland Jr. to Margery Kirkland, from Margery Kirkland to G. S. Tanner, from G. S. Tanner to A. J. Tanner and Mrs. Eliza Smith, and from Mrs. Smith to A. J. Tanner. While the first deed out of Kirkland Sr., which is the first link in the plaintiff's chain, bears a date prior to his deed to Kirkland Jr., the former was not placed on record until several years subsequent to the date and record of the deed from Kirkland Sr. to Kirkland Jr., which last-referred-to deed is the first link in the defendant Tanner's chain of title. That deed, as against the other deed, which, though its execution bore a later date, was first recorded, took priority, if taken without notice of the existence of the first. Code, § 29-401. Kirkland Jr. could not be said to have taken the second deed without notice, because he was a party in both deeds; nor for the same reason could his subsequent grantee, Margery W. Kirkland, be so treated. Unless, however, her grantee, Tanner, took with notice, the latter would not be charged with notice which the law imputes to her and her grantor, but on the contrary he would be protected. Truluck v.Peeples, 3 Ga. 446; Collins v. Heath, 34 Ga. 443. The ruling to that effect in the two cases last cited is now embodied in the Code, § 37-114. On the former appearance of this case (197 Ga. 471, supra), it was held that a recital in a deed, by way of further description of the premises, making reference to another deed from one who, according to the registry of deeds, had at that time no title that he could convey (there being on record a deed to the same property from him to the grantor in the first-mentioned deed, the first-mentioned deed not referring to such other deed as the source of the grantor's title), is not sufficient to justify a holding that said reference carried notice that the grantees in the last-named deed were clothed with title. Looking alone to the writings which furnish the basis of the claims of ownership, it must be held that the defendant had the superior title and was therefore entitled to prevail, there being nothing in the record to rebut the presumption that Tanner was an innocent purchaser. Johnston v. Neal, 67 Ga. 528 (3), 534. Counsel for the plaintiff contends that the testimony of Tanner himself shows that he did not purchase in good faith. This contention has not been overlooked, but in our opinion it can not be maintained.

2. The plaintiff insists that she proved a prescriptive title. The burden was on her to affirmatively establish such contention.Bussey v. Jackson, 104 Ga. 151 (30 S.E. 646). The substance of her own testimony on this subject, set forth in the preceding statement, is insufficient for that purpose. The same statement shows what Mrs. G. W. Heirs swore with respect to that contention. Her testimony likewise fails to give sufficient facts to authorize a finding in support of a prescriptive title. The witness A. J. Meeks testified that he knew the place during the time Mose Kirkland Jr. and his wife lived there, but did not testify that they lived there for as many as seven years at any one time; but would move, and return for two or three years. This witness further testified that: "After they moved back to Nicholls, he kept it rented out. Mose Kirkland Jr. was in charge of it. He was in charge of it when he lived in Nicholls — he kept men put there, and would go back to look after it." How long Kirkland Jr. kept it rented out, the witness does not state. The testimony of Alfred Meeks also appears in the accompanying report of the facts. He was unable to say "plime blank approximately how long" Kirkland Jr. and his wife lived on the place. They were there after the witness was grown and married, which "was in ``95," but for how long he does not tell us. The Kirklands, "after they moved off the place, had tenants on it — right on for several years," but here again he did not inform the court for how long. These were the only witnesses who gave testimony in support of the claim of a prescriptive title. Their evidence was not sufficient to establish it. There was not shown any continuous, uninterrupted possession for any one period of seven years, even if it be conceded that all the other elements of a prescriptive title were shown. Compare the Code, §§ 85-401, 85-402, 85-406, 85-407; Greer v. Raney, 120 Ga. 290 (47 S.E. 939); Clark v. White, 120 Ga. 957 (48 S.E. 357). As an additional reason for the ruling on this branch of the case, it is well to recall the testimony of Mrs. Heirs, a daughter of M. J. Kirkland Jr. and Margery Kirkland, to the effect that her parents were first in possession of this property in 1889, and her evidence is undisputed. It contradicts the statement in the plaintiff's amendment that immediately upon the execution of the deed from Kirkland Sr., dated in 1903, Kirkland Jr. and his wife entered actual possession. The deed from Kirkland Sr. to Kirkland Jr. was executed in 1881, and the deed from the latter to his wife in 1889. The one from Kirkland Sr. to his son and daughter-in-law for life, with remainder, was dated May 11, 1903. Prescription is based on possession and a claim of right. The possession of land, if held under a claim of right, is in law referred to the title, actual or supposed, under which the right of possession is claimed. Powell on Actions for Land, § 294. This would seem to be the deed from Kirkland Sr. to Kirkland Jr., dated April 23, 1881, since the deed from the same grantor, which contained a remainder interest, was not dated until September 30, 1908. In this view of the matter, where is any prescription under which the grantee of the remaindermen can claim? There was no error in directing a verdict for the defendant for the 150 acres.

3. In the plaintiff's motion for new trial, complaint is made that, since the court directed a verdict in her favor for the other 50 acres, and since the record shows that she was entitled to recover at least the 50 acres, the court erred in not submitting to the jury the question of how much mesne profits she was entitled to, instead of in effect, by the ruling made, denying her the right thereto. The plaintiff in her petition set forth that she derived her title by quitclaim deeds from the heirs at law of Moses W. Kirkland Jr. and Margery W. Kirkland. None of these quitclaims bore a date earlier than February 7, 1942, a few days before the filing of the suit. In the pleadings she prays for the recovery of mesne profits "for each of the years 1938 to 1941 up to December 31st inclusive." There was no demurrer, and hence, when the case came on for trial, there was no estoppel of which advantage might be taken. In that situation, it does not necessarily follow that she has alleged sufficient facts which, if proved, would entitle her to recover mesne profits for the years antedating the conveyances to her. See statements to that effect and the discussion therein in Kelly v. Strouse, 116 Ga. 872 (8) (43 S.E. 280), and Ross v.Durrence, 173 Ga. 457 (160 S.E. 370).

The question as to the right of the plaintiff to recover mesne profits for the years before she acquired her title is in principle ruled adversely to her in Allen v. Macon, Dublin Savannah R.Co., 107 Ga. 838 (33 S.E. 696). That was an action for damages brought against the company for having trespassed upon the land of the plaintiff, the title to which he had acquired subsequently to the trespass. It was there ruled that a vendee of land upon which a trespass had been committed while it was the property of his vendor has no right of action against the trespasser for damages thus occasioned, which were recoverable by the vendor; aliter, as to new and additional damages growing out of a continuation of the original trespass after the vendee acquired title. In the opinion, it was said: "The reason for this rule is obvious. As is pointed out by the authorities above cited, a trespass upon land simply gives to the owner a right of action for damages, which can not be said to ``run with the land,' and therefore does not pass to a subsequent purchaser." When the plaintiff acquired her deeds in 1942, there was no express assignment to her of her vendor's right to proceed against the defendant for the mesne profits that had already accrued, nor did the law write into her purchase any such right.

Mesne profits are recoverable as damages. The claim therefor sounds in tort, which is "the unlawful violation of a private legal right, other than a mere breach of contract." Code, § 105-101. An action for a tort shall in general be brought in the name of the person whose legal right has been affected, and who was legally interested in the property at the time the injury thereto was committed. § 3-109. Compare Wood v. McGuire,21 Ga. 576, and the statement of Lumpkin. J., at the end of division 4 of the opinion. Although the question here dealt with does not seem to have heretofore been squarely presented in any decision of this court, the ruling here made to the effect that the plaintiff is not entitled to recover mesne profits for any space of time prior to her acquiring title is supported by the following authorities: Hotchkiss v. Auburn Rochester R. Co. (N. Y.), 36 Barb. 600; Lang v. Williams, 166 Mo. 1 (65 S.W. 1012); Payne v. Treadwell, 16 Cal. 220.

4. If it be assumed that although the plaintiff prayed for the recovery of mesne profits only up until and including December 31, 1941, she was yet entitled upon proper proof to recover these from the date of the several quitclaim deeds made to her up to the date of the trial, it remains to be considered whether there was sufficient evidence to authorize the submission thereof to the jury. Mesne profits are not recoverable without some evidence as to amount. Eaton v. Freeman, 58 Ga. 129. While there was some evidence as to value of the 200 acres as a whole and what a turpentine lease on the whole would be worth for the years 1942, 1943, and 1944 — $50 per thousand boxes each year — and evidence as to how many boxes had been worked for each of several years on the whole, there is no way to separate the value of the mesne profits on the 150 acres from those on the 50 acres. All the testimony that affected the value related to the turpentine privileges. There is nothing to indicate that the trees were of uniform size or age on the two tracts. No one gave an opinion as to the value of the mesne profits on the 50-acre tract, and no facts were furnished the jury as to this tract to enable them to form an opinion. The testimony further was that a turpentine operator's profit comes from the first four years of his lease. There is in the record a turpentine lease to the 50 acres, from G. S. Tanner to Andrew J. Tanner and Harry Smith, dated February 5, 1937, and running five years, which recited a consideration of $150. This lease expired before the plaintiff acquired her claim of title, and standing alone, as it does, is insufficient to form the basis as to any value for mesne profits of the 50 acres after February 7, 1942, which was the date of the plaintiff's first deed. The plaintiff has no just ground to complain that the trial judge failed to submit to the jury the question of mesne profits, since she failed to produce evidence as to the amount and value thereof.

Counsel for the defendants in the trial court, the plaintiffs in error in the cross-bill, make this statement in their brief: "The defendants have filed no main bill of exceptions and consequently do not expect a ruling on the exceptions made in the cross-bill, unless there should be a reversal on the main bill of exceptions." In the oral argument of this case, the same counsel asked that his cross-bill be dismissed, if the main bill be affirmed. The request is granted. Compare Holsey v. Porter,105 Ga. 837 (37 S.E. 784); Mackin v. Blalock, 133 Ga. 550 (4) (66 S.E. 265, 134 Am. St. R. 220); Schroeder v.Schroeder, 144 Ga. 119 (86 S.E. 224).

Judgment affirmed on the main bill of exceptions; cross-billdismissed. All the Justices concur.