Welchel v. Thompson , 39 Ga. 559 ( 1869 )

McCay, J.

1. The pendency of the first application ought to have been pleaded in abatement. By going to trial on the merits this plea was waived, and the defendant below could not take advantage of it on the trial. Code, secs. 2843, 3404. We do not think there was anything in this point.

2. There was very strong proof that there had been a previous division of this land by commissioners appointed by the Court, under a partition similar to the present. That return was never actually carried to the Court, and made the judgment of the Court, but there was a good deal of proof that the present movant acquiesced in the partition, and that each party had occupied adversely and independently the part allotted to him, and had done more or less improvement upon it.

The Court, in our judgment, erred in charging the jury that this possession and acquiescence, by each of his part, if such there was, must have continued seven years. We do not think this was necessary. These parties were tenants-incommou. If the land was divided between them, even by parol or by commissioners, and each accepted his part, went into possession wider the division and made improvements, it was a good division. The possession did not have to continue seven years to be complete. It became complete when possession was taken by each of the part allotted to him, provided this was done pursuant to the partition. Why should this differ fi\>m a parol sale of land? We think it stands on just that footing, except that there was no purchase-money. Under the Code, sections 1941, 3131, such a possession as the jury, from this testimony, might have found to have existed, would have been a good part performance. The Court ought to have left it to the jury without the qualification that it must have continued seven years. On this ground we reverse the judgment.