Bennett v. Taylor ( 1957 )

Quillian, J.

The' respondent having abandoned his general grounds and all but one of the special grounds, we will consider only special ground 4 of the motion for new trial. This ground insists that the trial judge erred in charging the jury: “Where actual possession has been had under a claim of right for more than seven years, such claim shall be respected and the line so marked as not to interfere with such possession. Actual possession of lands, as defined by the law, is evidenced by enclosure, cultivation, or any use and occupation thereof, which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another. In order for such possession to be respected by the processioners and the line so marked as not to interfere with it, such possession must be actual at the time the processioning is had, and must have been under a claim of right for more than seven years.”

There was evidence from which it could be inferred that the protestants and their predecessor in title had been in adverse possession up to the disputed line for more than thirty years before the processioning proceedings were instituted. The respondent, Mr. Bennett, and Aaron Johnson testified that about the year 1935 the respondent' had an agreement with the protestants’ predecessor in title that the line contended by the protestants would not be the dividing line but would be merely used as the line up to which each would work. The verity and weight of this 'testimony was for the jury. Code § 38-1805; Scott & King v. Ayers, 66 Ga. 254; Blood v. State, 24 Ga. App. 344 (100 S. E. 761); Metropolitan Life Ins. Co. v. Joye, 77 Ga. App. 357, 363 (48 S. E. 2d 751). The jury could have accepted a part of the testimony of these witnesses as true and rejected the remainder of it as false. “ ‘A jury in arriving at a conclusion upon disputed issues of fact may believe a part of the testimony of a witness or witnesses, and reject another part thereof, it being their duty to ascertain the truth of the case from the opinion they entertain of all the evidence submitted for their consideration.’ Sappington v. Bell, 115 Ga. 856 (42 S. E. 233). See Evans v. Schofield’s Sons Co., 120 Ga. 961 (48 S. E. 358).” Lawhon v. Henshaw, 63 Ga. App. 683 (3) (11 S. E. 2d 846). Thus the jury was authorized to believe that the line was recognized by Bennett as the dividing line from the time of the agreement in the year 1935, and that he actually recognized the fact that the joint owners of the Johnson lands, including Mrs. Taylor who was one of the protestants, then went into possession up to the agreed line.

The length of time that the line had been used, approximately 19 years, and the fact that Bennett never apprised the protestants so far as the record discloses of the agreement to which he testified, were circumstances that the jury might consider and which the jury might find outweighed his testimony and served to successfully refute it. In McRae v. Wilby, 59 Ga. App. 401 (1c) (1 S. E. 2d 77), it was held: “In the present case the jury was authorized to find that the direct and positive testimony of the defendant and his office clerk, a witness on his behalf, uncontradicted by any witness, was not consistent with the circumstantial evidence introduced on the trial of the case, and under the law and the evidence to return a verdict in favor of the plaintiff.” There was evidence that in 1947 Mrs. Pauline J. Taylor and Charles A. Taylor, the protestants, acquired the entire title to the entire tract of land which they contended extended to the line claimed by them, and that prior to that time and continuously since 1924 Mrs. Taylor had owned an undivided interest in the property. There was evidence that she, with the other joint owners from 1924, was in possession of the lands until she and her husband went into possession in 1947. Consequently, the trial judge did not err in submitting the issue of adverse possession to the jury and giving appropriate instructions in reference thereto. Fincher v. Harlow, 56 Ga. App. 578 (193 S. E. 452).

Judgment affirmed.

Gardner, P. J., Townsend, Carlisle and Nichols, JJ., concur. Felton, C. J., dissents.