Byrne v. Lowry , 19 Ga. 27 ( 1855 )

By the Court.

Benning, J.

delivering the opinion.

P-.J It seems that Albritton first took possession of the land •in 1841; but that after remaining in possession of it a while he, in the same year, left it and went back to his residence in the County of Eranklin, and resided there until the latter part of the year 1842, when he returned to the land in Cobb and resumed possession of it; and that he has kept possession .of it ever since.

The question is, did the Statute' of Limitations run in his favor, during the interval when he was so residing in the Couaty of Franklin ?

And the answer to that question depends on the answer to ■another, viz : this — when did the right to bring this suit accrue to the plaintiff or the plaintiff’s lessor ?

And in respect to the answer to'this question, it may be said that the right to bring this suit or to bring any action of ejectment against Albritton, as tenant, did not exist during the time when he was away from the land, residing in Franklin; because, whilst he was thus absent, the owner had no need of any redress by suit. He might have redressed himself by his own act. If he had simply entered on the land and taken possession of it, as he might well have done, he would have been as effectually redressed as he could have been had he been put in possession by the Sheriff, acting under a writ of possession, issued from a judgment in ejectment. (8 Blade. Com. 5, 174.) And because, secondly, the' owner not only had no need of any redress by suit, but he had no way of obtaining any redress by suit. He could ' not have sued Albritton, because, as the land lay in Cobb County, the suit would have had to be in that county; and as Albritton, during that time, was in the County of Franklin,' and was residing in the County of Franklin, he could not have been served with any suit which was in Cobb; and therefore, he could not have been sued in Cobb.

The right, then, to bring this suit, did not exist during the interval when Albritton remained in the County of Franklin. And if it did not exist during that interval, it could not have accrued until the termination of that interval, and that was not until the return of Albritton to the land.

Our conclusion then is, that the plaintiff’s right to bring this suit did not accrue until the return of Albritton to the land. But that return was within seven years next before the commencement of the suit.

To hold the contrary would be to hold, that if A should, under color of title, take possession of the land of B as his own, and hold it for a day, and then should leave it, with the intention of returning to it at the end, say of seven years, and should, in the meantime, keep himself out of the way of a suit, as by remaining in some foreign country, and should, at the end of the seven years, return to the land, and finding things as he left them, resume possession of it, he would, under the Statute of Limitations, be able to retain the lanx the true owner.

YVe think, therefore, that the Court should have charged the Jury, that the Statute of Limitations could not run in favor of Albritton during the interval when he was in Franklin County, residing in that' county. And therefore, we think there ought to be a new trial.