Graham v. Mitchell , 78 Ga. 310 ( 1886 )

Hall, Justice.

This was an action in the statutory form for the recovery of lot of land number 720 in the 5th district and 1st section of Lumpkin county. On the trial of the case, the plaintiff produced and relied upon a grant to the premises in dispute, issued by the State to her on the 20th day of May, 1816. It appears that she had never sold the land to any one. The defendant did not claim that he derived title from her, but, through others, from one Philip Van Horne, who made a deed in 1857 to the Gaddises, who were, with others, through sheriffs’ sales, the immediate feoffors of defendant, who seems to have resided only for a short time on the premises when he went to the Rocky mountains. The title under which he claims bore date in 1859, and when he returned from his western trip, during the late war, all the improvements on the land, houses, fences and everything of that character, had been destroyed, and no attempt was made to re-occupy the premises until just before the commencement of this suit. From 1866 to that time, there were frequent entries on the land to prospect for gold, and occasionally some ore was mined. When this grant issued, the plaintiff was an infant only a few weeks, or at most months, old. The grant was taken out for her by her father, the late William L. Mitchell, of Athens, who, up to his death, paid taxes on the lot, and since that time she has paid the taxes. She never heard of any counter-claim until 1883, and commenced her suit early in 1885. There not being the slightest evidence of any continuous possession of the land, adverse or otherwise, for the statutory period since she attained her majority or before that, time, the jury found for her the premises in dispute, and as prescription did not. run against her during her minority, and as there was no evidence of any continuous adverse holding against her by the defendant, or any one from whom he derived title, to whose possession his title could be tacked, or any person holding under him as his tenant (code §§2678, 2679, 2683, 2686, 2687), the verdict was imperatively demanded and no other could have been lawfully found.

Although the court erred in charging the jury that the onus was on the defendant to show to their satisfaction, beyond a reasonable doubt, that he had a better title than the plaintiff, this was error that did not hurt him, since the verdict could not have been other than it was and a new trial would not result differently. In a more doubtful case, this assignment of error must have resulted in a reversal of the judgment refusing a new trial.

The other error assigned on the charge of the court, in the motion for a new trial, is not certified by the judge and cannot, therefore, be considered.

Judgment affirmed.