Harrison v. Durham , 210 Ga. 187 ( 1953 )

210 Ga. 187 (1953) 78 S.E.2d 482

HARRISON
v.
DURHAM.

18323.

Supreme Court of Georgia.

Submitted September 14, 1953. Decided October 14, 1953. Rehearing Denied November 12, 1953.

J. C. Hale, for plaintiff in error.

Thomas A. Clark, contra.

DUCKWORTH, Chief Justice.

1. While the plaintiff here failed to show title back to a common grantor with the defendant under the rule laid down in Sinclair v. Friedlander, 197 Ga. 797 (30 S. E. 2d 398) or back to the original grant from the State, as the plaintiff in error contends — he, nevertheless, showed a chain of title for more than forty years with proof of possession under color of title and claim of right for that period of time, and this was sufficient to make a prima facie case in ejectment. Davis v. Stripling, 32 Ga. 656; Code §§ 85-406, 85-407; Camp v. Cochrane, 71 Ga. 865; Ballenger v. Burton, 147 Ga. 5 (92 S. E. 514); Mitchell v. Crummey, 134 Ga. 383 (67 S. E. 1042). For the reason stated above the court did not err in overruling the motion for nonsuit, in allowing the chain of deeds in evidence, and in failing to charge the jury that the plaintiff must prove title back to a common grantor or back to the original grant from the State. Under the foregoing ruling, the exception pendente lite and special grounds 1 through 17, and 20, complaining thereof, are without merit.

2. The court did not err in allowing in evidence certain certified copies of deeds, objected to because the proper foundation for secondary evidence was not properly laid. The discretion of the trial judge in determining the sufficiency of the foundation shown is very broad, and this discretion can not be controlled unless it be shown that he grossly abused that discretion. Code §§ 29-417, 38-609; Hayden v. Mitchell, 103 Ga. 431 (30 S. E. 287); Cox v. McDonald, 118 Ga. 414 (45 S. E. 401); Patterson v. Drake, 126 Ga. 478 (55 S. E. 175). There being some evidence on which the judge based his discretion here, it can not be said that he abused it in admitting these copies, particularly since the deeds in question were more than forty years old, and the plaintiff testified at length as to the diligent search made to find the original deeds without success. See Hayden v. Mitchell, supra; Powell, Actions for Land, p. 206, § 198. Nor did the court err in not excluding the evidence submitted by the plaintiff to show his inability to produce the original deeds. Special grounds 4 through 16, complaining of the admission of these copies in evidence, and special ground 25, complaining of plaintiff's testimony, are without merit.

3. The granting of an order of sale by the ordinary to an administrator is an adjudication that the applicant therefor was the administrator and authorized to make the sale, and it is not necessary to prove the letters of administration appointing the administrator, when such order, together with the administrator's deed, is used as a muniment of title. Powell, Actions for Land, 270, § 246; Roberts v. Martin, 70 Ga. 196; Bunger v. Grimm, 142 Ga. 448 (83 S. E. 200). The court did not err in admitting the order in evidence here for this reason, and there is no merit in special grounds 3 and 18 complaining thereof.

4. Nor did the court err in admitting the order in evidence for lack of description of the land to be sold. The description in the order of the court of ordinary is sufficient, since it specified the land to be sold so that its location could be determined by extrinsic evidence. Hayes v. Dickson, 148 Ga. 700 (98 S. E. 345); Crider v. Woodward, 162 Ga. 743 (135 S. E. 95). There is no merit in special ground 3, complaining thereof.

5. That which is most material and certain in a description prevails over that which is less material and certain, and the description in the administrator's deed, which describes a vacant lot containing 4/5 of an acre in the Town of Brinson, Decatur County, Georgia, and by metes and bounds, prevails over the last phrase thereof which states "being the west half of said city lot." Thompson v. Hill, 137 Ga. 308 (73 S. E. 640); Stewart v. Latimer, 197 Ga. 735 (30 S. E. 2d 633). The deed conveys the entire lot described therein, and not the west half thereof as contended in special ground 19.

6. The court correctly charged the law of adverse possession under written color of title, and this portion of the charge is not subject to the various criticisms made in special ground 21, to wit: (1) mere possession of the property by the plaintiff and his predecessors in title would not authorize the plaintiff to recover, and (2) the court failed to charge that if the defendant had been in adverse possession under written evidence of title for seven years, his title would be superior to the plaintiff's and the jury should return a verdict for the defendant, the charge given being almost verbatim in the above language.

7. The exception to that portion of the court's charge on constructive possession, embodying the substance of Code § 85-404, upon the ground that the case did not involve a land-line dispute, is without merit. The record shows that this excerpt follows immediately a charge on prescriptive title and constructive possession; and, being a correct statement of law, it was necessary to prevent the jury from finding prescriptive title in violation of the statute if there was any evidence showing such adjacent owners; and, if there was no evidence as to adjacent owners, the charge could not possibly have been injurious to either party.

8. While there was no contention that the defendant's written evidence of title was forged or fraudulent, the charge complained of in special ground 23, which was, in substance, Code § 85-407, was a portion of the court's general charge on prescriptive title and a correct statement of the law which could not have been prejudicial to the defendant, whose possession under color of title must necessarily have been in good faith to ripen into title, and the charge was not harmful to the movant. Code § 85-407. See also Jackson v. Sanders, 199 Ga. 222 (33 S. E. 2d 711, 159 A.L.R. 638).

9. In the court's charge, after stating the contentions of the defendant, the words "of course" precede the instruction that, if the jury finds the contentions are sustained, the verdict would be for the defendant, and complaint is made of the words "of course." While these words were surplusage and need not have been used, nevertheless as used they did not intimate an opinion of the judge as to whether or not he lightly considered the contentions of the defendant, and special ground 24 is without merit. See Mallary v. State, 156 Ga. 596 (5) (119 S. E. 636); Deering v. State, 201 Ga. 756 (41 S. E. 2d 154).

10. The evidence was sufficient to support the verdict, and the general grounds are without merit. It follows that the court did not err in denying the motion for new trial as amended.

Judgment affirmed. All the Justices concur.