Veal v. Robinson , 70 Ga. 809 ( 1883 )

Hall, Justice.

1. A careful examination of this voluminous record satisfies us that the judge who tried this case committed no error in the various rulings and charges to which exceptions have been taken by the defendant below, nor was tbere error in the finding of the jury upon any of the questions thus submitted to them. To this extent the verdict was in accordance with the evidence. There was no error in refusing to charge any of the requests made by defendant’s counsel, except in one instance.

2. The court should not have refused to submit to the jury the issue made upon the defendant’s claim to a prescriptive title, and should have charged upon that subject as requested by her counsel, “ that color of title is anything in writing purporting to convey title to land, which defines the extent of the claim, it being immaterial how defective or imperfect the writing may be, so that it is a sign, semblance, or color of title; and if they should be satisfied, from tbe evidence, that the defendant was in the actual, public, continuous, peaceable, notorious, and unin? Lerrupted possession of the premises for seven years prior to the commencement of the suit, under such color of title, and that her claim did not originate in fraud, and that she held in her own right in good faith against all other person, including her husband, then she was entitled to retain possession of the land.” Tliis charge ought to have been given, together with proper instructions applying hypothetically to the assumed facts; and the jury should have been further instructed as to what constituted fraud and bad faith, and should have been told that if these things existed, then she had no right to hold the premises. There was some evidence on which this charge could be requested, and the issue that it made should have been submitted to the consideration of the jury, and they should have been left to apply it to the facts of the case. Whether it would have changed their finding we cannot certainly know, and we forbear the expression of any opinion as to the effect it should have in bringing about a different result upon another trial. Eor the reason above stated, and for that alone, the judgment granting a new trial is affirmed.

Judgment affirmed.