Rowan v. Newbern , 32 Ga. App. 363 ( 1924 )

Jenkins, P. J.

The tract in question was a part of the lands conveyed by the deed of Bowan to an administrator and by the administrator to the plaintiff. This part consisted of 47-% acres, located in the northeast corner of lot No. 227 in a stated district and county, bounded on the south and west by “the run of Bushy creek.” The alleged paramount title held by Tyson was based on a deed from Young dated December 8, 1884, bearing entry of record January 22, 1904. There being no official witness, this record, however, was void and ineffective. The deed to Tyson purported to convey the entire north half of lot No. 227, including the 47-% acres in controversy. The undisputed testimony of Tyson showed that under this deed he went into possession of the lower portion of the tract in 1887, built a house, and cleared up 25 or 30 acres of land, on which he had made crops continuously each year since that time without intermission. This actual adverse possession of a part of the lot under-paper title was sufficient to extend constructive possession to the northern boundary of the lot, including the 47-% acres, and thus to ripen into a good prescriptive title after seven years, viz. in 1894, unless the ripening of such prescription was defeated or interrupted by one of the-recognized exceptions.

The defendant claimed under deeds to himself and to his grantors, covering the tract in question, but failed to show a good paper title; the original deed to his grantors being executed November 21, 1891, several years subsequent to the deed held by Tyson, and being recorded February 5, 1898. The defendant’s deed to the administrator containing the warranty, and the deed by the administrator to the plaintiff, were made November 5, 1912. There was testimony elicited on cross-examination of the plaintiff to the effect that there had been some cutting and “turpentining” of timber on the 47-% acres by the plaintiff’s predecessors in title, since the deed was made to the plaintiff and during the alleged ownership of the defendant and his grantors; but the periods and dates of this cutting were not fixed, so as to show an interference ■with the exclusiveness of Tyson’s prior and continued possession up to the time that his prescriptive title had ripened. The evidence as to turpentining was likewise wholly insufficient to raise an issue for the jury. Although the plaintiff testified that such work “was going on for a number of years, probably 20, — I don’t know about that,” elsewhere stating that it was “12 or 15 years” while the plaintiff and his predecessors “had it” (the suit being filed in 1918, and the testimony given at the trial in 1921), there was not only a failure to show the nature, openness, and extent of the acts of “turpentining,” so as to present an issue for the jury whether these were sufficient to interfere with the exclusiveness and continuity of Tyson’s possession (Flannery v. Hightower, 97 Ga. 592 (3), 606, 25 S. E. 371; Walker v. Steffes, 139 Ga. 520 (3, 6-7, 9 b), 77 S. E. 580; Mitchell v. Crummey, 134 Ga. 383 (6), 387, 67 S. E. 1042), but also a failure to identify or fix the time when such “turpentining” began and ended, or any fact to indicate that it commenced as early as or prior to 1894, by which time the possession and prescriptive right of Tyson under his older, though unrecorded, deed had become complete. His title being thus perfected and his possession of the premises continuing, the subsequent acts of the defendant and his predecessors with reference to the timber, so far as shown by the evidence, would not defeat such title.

Judgment affirmed.

Stephens and Bell, JJ., concur.