Roe v. Doe ex dem. Tait , 38 Ga. 439 ( 1868 )

McCay, J.

This was action originally brought in 1860, in the name of John Doe, ex dem., Roily Hopper vs. Richard Roe and John Pollard, tenant-in-possession. On the trial, plaintiff introduced letters testamentary' to one Edmund B. Tait, on the estate of Roily Hopper, dated in 1857. As this showed Roily Hopper to have been dead at the commencement of the suit, the plaintiff, on the trial, 24th September, 18'67, added a new demise, in the name of Taifi, executor.

Defendant proved possession ever since the 5th of November, 1857, under a written deed from one Bonner, and relied upon his statutory title. The grant was to Roily Hopper. The Court charged the jury that the several Acts, (1860-1865), suspending the statute of limitations, prevented the attaching of the statutory bar, and there was a verdict for the plaintiff. There was no question made in the case, as to whether Roily Hopper was or was not dead at the time of defendant’s taking possession. By the facts in this record, it appears that the defendant went into the possession of the premises in dispute, on the 5th of November, 1856, and has continued in possession ever since. It further appears that he claimed the land in his own right, and under “ written evidence of title.” Clearly, his title is good, unless/ by reason of the various Acts, suspending the statute of limitations, he.is prevented from taking advantage of his adverse possession, under written evidence of title, for seven years. We have decided, at this term, that the statutes of limitations were suspended during the war, and up to the restoration of civil government, by various Acts on .the subject. We do not think, however, that this suspension can operate in this case, to defeat the defendant.

2. By the Code of Georgia, which went into operation on the 1st of January, 1863, the whole theory of the law, upon the effect of a statutory possession, is altered. There is, in the Code, no statute of limitations, fixing a period within which actions shall be brought for the recovery of real or personal property.

The object of such statutes,, to-wit: the protection of a bona fide possession, under claim of right, is attained by providing that adverse possession of lands, under written evidence of title for seven years, and adverse possession of personal property for four years, shall give a title by prescription. Secs. 2641, 2643.

Section 2644 provides that “Ho prescription works against the rights of a minor during infancy, of a married woman during coverture, etc., and section 2645, has a general provision, that a prescription commenced, shall cease against persons under disability, pending the disability. By other sections of the Code, under this same title of- prescription, there is a careful accommodation of this new doctrine to the various exigencies of society, so as to prevent injustice. It is, however, perfectly apparent that it was the intent of the compilers of the Code to drop altogether the statute of limitations of suits for the recovery of real or personal property.

It follows, therefore, that since the 1st of January, 1863, there has existed, in Georgia, no statute of limitations as to suits for realty. The Acts suspending “ The Statute of Limitations ” do not apply to actions of ejectment after the 1st of January, 1863, since, after that date, we had no- such statutes applying to such actions.

3. So far, therefore, as the rights of this defendant depend upon a possession since the 1st of January, 1863, the suspensions of the statute of limitations do not affect him; they create no disability to sue, and, as we understand the Code upon this subject, the whole period, from the 1st of January, 1863, till the bringing of this suit, is to be counted in favor of the defendant.

4. We are of opinion, also, that the defendant may tack to his possession, since the 1st of January, 1863, any previous possession, which would have been a good defense under the statute of limitations. It-certainly was not the intent of the Legislature, by this charge, in the theory of the law, to deprive a party in possession of any right he had already acquired. The possession, in this case, had begun in November, 1857, and at the suspension of the statutes, on the 14th of December, 1861, he had an adverse possession of over four years.

From the 14th of December, 1861, to the 1st of January, 1863, the statutes were suspended. But after the 1st of January, 1863, there was, as to realty, no statute of limitations. The law of prescription then went into operation, and has continued since. Looking to the object of such laws, we cannot suppose that the Legislature could have intended that possessions which had been running and ripening into title before the 1st of January, 1863, should be lost, and we, therefpre, conclude that persons in possession adversely under written evidence of title, on the 1st of January, 1863, started, under the new law, with whatever of right they had already acquired under the statute of limitations. And they may tack to their possession, since the 1st of January, 1863, any possession previously to that time, which might have been counted under the plea of the statute.

5. Under our liberal laws upon the subject of amendments, we see no objection to the introduction, at any time before trial, of a new lessor of the plaintiff in an action of ejectment. But, as to him, it makes essentially a new suit. It may be that he has no connection, at all, with the previous parties; at any rate, this Court, in the case of Roe et al. vs. Doe et al, 30 Ga. R., 873, has decided that the titles of the several lessors are different causes of action, and, for purposes of defense, the action, as to each one of them, is to be considered as commenced when that one is introduced into the declaration. This amendment was made September, 1867, and, therefore, up to that time, the defendant, as to that lessor, was in adverse possession.

- We think, for these reasons, the Court below was in error, and that a new trial ought to be had.