Doe ex. dem. Pendergrast v. Gullatt , 10 Ga. 218 ( 1851 )

By the Court.

Lumpkin J.,

delivering the opinion.

[1.] The first question presented for our consideration is, whether the Court erred in admitting the testimony of Moses Jones ?

This witness testified, among other things, that he knew the land in dispute, lot No. 132, in the 18th district, of originally Muscogee, now Harris County, and that Richard Prather, the tenant in possession, purchased it of a Mr. Alford, in the fall of the year 1838, he thought in the month of November of that year, and took possession thereof, having given his note in payment, for f 1150.

It is asserted that it was not competent for the defendant to protect his possession, under the plea of the Statute of Limitations, by proof of a parol purchase.

It does not appear from the evidence, that the contract between Prather and Alford was ever reduced to writing.

In English vs. Register and others, 7 Geo. Rep. 387, this Court held, my brother Warner delivering the opinion, “that possession under color of paper title, was not indispensably necessary to protect a party in the possession of land under the Statute of Limitations. That a party may acquire a title under the Statute, as against the true owner, by possession, accompanied by such acts of ownership and dominion over the premises, as in law, would amount to a disuser and ouster of such true owner, to the extent of such possession.”

And again, “ when the possession of a tract of land in this State is usurped by one having no paper title, and such possessor exercises dominion over it by visible and notorious acts of ownership, cultivating and improving it, as owners usually do, such visible and notorious act's of ownership will in law amount to a disuser and ouster of the possession of the true owner; and if continued for seven years, will bar the right of action of the true owner.” (Ibid.)

[2.] This Court is not therefore, only fully and unanimously committed to the doctrine that z paper title is not indispensably necessary to protect a party in this State in the possession of land, under the plea of the Statute of Limitations, and that a parol contract of purchase may be set up by the tenant to defend his possession ; but that even a usurpation of the possession, provided the occupancy be accompanied by visible and notorious acts of ownership, is sufficient for that purpose. Beyond this, I am not aware that any member of this Court has gone. But I will go further: Prather having bought the land and paid for it, and gone into possession, his contract would be valid under the Statute of Frauds, and a specific performance ’would be decreed. 2 Story’s Eq. Jur. §761, and the authorities cited in the note.

The plaintiffs asked the Court to charge the Jury:

1st. That the title of Prather, if a trespasser, in order to bar the right of the plaintiffs, must have continued seven years in himself from the time that the plaintiffs arrived at age, and must still have so continued at the commencement of the plaintiff’s suit.

2nd. That the several possessions of Prather, Gullatt and Burdett, if the Jury believed from the evidence, that they severally had such possessions, cannot be counted together, if they were trespassers, so as to create a possessory title by the lapse of seven years, in either of them, and that even if Prather had continued seven years in possession, and had given up said possession to either of the others, as tenants or otherwise, such possession cannot'be relied on to sustain the Statute of Limitations.

[3.] I consider that the instructions asked were improper, and therefore rightfully refused: because the evidence exhibited did not warrant such a charge. They are predicated upon the assumption that Prather and those claiming under him, were trespassers; whereas, there is not only no testimony to warrant such an idea, but the proof shows that they held by contract. Moses Jones, after stating the purchase from Alford by Prather, further swears that he continued in possession “ individually in his own right, from 1839, to 1848, making annual clearings; and that on the 25th of December, 1848, he was succeeded by Gullatt, who took possession under purchase; that Gullatt became dissatisfied with his trade and cancelled it, continuing thereon as the tenant of Prather, in the occupancy of the premises during the year 1849.

The instructions called for, applied to a different state of facts from these. Besides, they were inapplicable, in another view of the testimony.

Suit was commenced for this land by the present plaintiffs, on the 6th of August, 1846, against one Burdett; and Prather was made a co-defendant. At September Term, 1848, there was a judgment of non-suit in the case; and within six months after-wards, the present action was instituted. But Prather having himself been in poss*ession from 1838 to 1846, eight years, the question of coupling together the possession of different trespassers, does not and cannot arise.

3rd. The rejection by the Court, of the certificate of birth and baptism, is assigned as error in the pleadings ; it seems however, to have been waived on the argument. We shall only repeat then, what is said in the brief of counsel for the defendant in error, on this point, “ that we know of no law of the State of New York, which authorizes officials of the “Holy Catholic Church,” to register births and baptisms, and which makes such registry evidence of the fact.” None such has been produced, and there is no such Statute in this State.

[4.] Another ground taken in the argument, by counsel for the plaintiff in error, is the refusal by the Court to charge the Jury that the infancy of both of the plaintiffs must have been removed before the Statute of Limitations commenced to run against either. In Jordan, vs. Thornton and others, 7 Geo. Rep. 517, this Court held, that if one of two be barred, and the other within the exception to the Statute, his exemption will not relieve against the operation of the Statute, as to the one barred. It is true, that this was an action of trover, to recover slaves, but real and personal estate are put upon the same footing.

Each individual lessor might have brought an ejectment to recover his own share, without the necessity of joining the other; for as tenants in common, they hold several titles, or rather by one title and several rights. Even in the case of coparceners who constitute but one heir, one may on her own demise, recover her own share, and so of the sole demise of a joint tenant to the plaintiff in ejectment, for that severs the joint tenancy and entitles to a recovery for the lessor’s proportion. (Doe Ex. demise of Bowyer vs. Judge, 11 East. 287.)

Where many have a joint right of entry, and one enters, his entry enures to the joint benefit of all; if there is a joint title, and some have lost their right of entry, he who enters, does it for the benefit of those whose entry is congeable. It follows, that if all have lost the right of entry but the one who enters, he enters solely for his own benefit, and becomes tenant in common with those who have acquired an estate in the land, by possession or otherwise.

The Circuit Court was right, therefore, in refusing to give the charge, as asked.

The last position assumed by counsel for plaintiff in error, is equally untenable, namely, that the Court declined to construe and administer the Statute of Limitations favorably to infants.

Our learned brother gave them the benefit of seven years limitations, both on the score of infancy and coverture, after the disability was removed. For he charged the Jury in totidem verbis, “that if either Edward M. Pendergrast or his sister came of age, within seven years next preceding the commencement of the action; or that if Julia Ann Pendergrast, being under age, had intermarried with Philip Reilly within that time, that then, the Statute of Limitations could not affect the one so coming of age or intermarrying as aforesaid.”

Whereas by the Acts of 1767 and 1817, these parties were entitled to three years only after the disabilities of infancy and coverture were respectively removed. Instead of excepting to the charge as prejudicial to the plaintiffs, the complaint should have been to the verdict of the Jury, as being contrary to the charge of the Court.

We are of the opinion that this case has been properly decided, and that the judgment be affirmed.

Per Ouriarn. — Judgment affirmed.