Powell v. Moore , 202 Ga. 62 ( 1947 )

1. All that is essential to a valid verdict is substantial certainty to a common and reasonable intent. By reference to the record in the instant case, the jury's intention to find for the plaintiff all of the land in controversy, is shown with substantial certainty.

2. Where the evidence shows without dispute that the plaintiff's claim to land is derived from one in whom a superior title by prescription has ripened, a verdict is demanded in his favor.

No. 15712. FEBRUARY 5, 1947. REHEARING DENIED MARCH 20, 1947. W. D. Moore brought ejectment in the fictitious form against Aaron Sharpe, tenant in possession. J. W. Powell, the real claimant, defended the suit. The action sought recovery of 59.32 acres of land in Thomas County and mesne profits. The declaration contained an accurate description of the land, acquired from Mrs. Madie T. Moore, who, as the plaintiff contended, had good title by prescription prior to her conveyance. The defendant denied that the land sought to be recovered belonged to the plaintiff, and said that it was part of a tract containing 119.1 acres, acquired from W. C. Lambert by deed dated November 26, 1938. The defendant vouched his grantor's executor into court; and by amendment alleged that the plaintiff was estopped to dispute his title to the land in controversy, because no effort had been made to evict W. C. Lambert from the land, who, while in possession thereof, had conveyed it to the defendant in 1938; and that he had remained in possession since then, making valuable improvements.

In support of his title, the plaintiff introduced in evidence a deed from Madie T. Moore to himself, dated June 18, 1938, and a plat prepared by A. L. O. Stephenson, surveyor, on May 14. 1937, both of which described the land as claimed by the plaintiff.

H. J. Moore, a predecessor in title of the defendant from 1912 to 1935, as a witness for the plaintiff, testified in substance as follows: that he had been familiar with the tract of land in dispute for about 40 years; that his wife, Madie T. Moore, was in possession of this land in 1938, when she conveyed it to the plaintiff, and had held it in continuous, uninterrupted possession 35 to 40 years prior thereto; that she inherited this tract of land from her mother; and while there were no buildings on the tract, it was under fence except on the back, there had been an old fence on the back for more than 20 years, and the "remains" were discernible the last time the land was seen by him; and that the plat presented to him correctly represented the lines of the 59.32 acre tract. He further testified that he purchased a 75-acre tract, which lies just west of and adjacent to the land in dispute, and known as the "Lambert 75-acre tract," in 1912, and remained in possession of it until 1935; that his possession under this deed extended to just 75 acres and included no part of the land in dispute; and that he had this tract measured and it contained 75 acres, no more or less.

Madie T. Moore testified: She had been in possession of the land in controversy for about 50 years, was in possession of it when she married 40 years ago, and had been for some time prior to that date. She inherited the land from her mother, who was the wife of Philip A. Wade; and she committed no fraud against anyone when she went into possession. There were fences on and around the land, and it had been in cultivation. Her husband last had a tenant on the land about 1935, 1936, or 1937. Her grandmother had lived on the place, and her possession and that of her grantee had never been disputed until now.

The plaintiff, W. D. Moore, testified: that he was present when a survey was made of the land in controversy in 1937; that the adjoining landowner, W. C. Lambert, was not present; that at that time Lambert was cultivating the 75-acre tract but no part of his 59.32 acre tract; that he had been on the land several times after the survey was made, but only to look after it; that he went into the military service in 1943 and did not know what happened to the land after that time, but he had never abandoned his claim or right to possession.

The defendant introduced in evidence thirteen deeds as his chain of title. The first being a deed from Maggie L. Wade to Peter Moore, dated December 16, 1902. The first four deeds described the land as follows: "All the following tract of land lying and being in the 13th district of Thomas County, Georgia, to wit: The following part of lot of land number 267, commencing at a point on the Thomasville and Quitman road and on the south line of said lot 19 chains and 60 links from the southeast corner of said lot, and run down said road towards Thomasville 21 chains and 80 links to Philip McKinnon and J. M. McKinnon's land — a sapline being the terminal point, then runs north 19 degrees east to the land line, the north line of said lot, thence down the run of said branch south easterly to P. A. Wades land, thence along said line southerly to Mrs. Permelia Williams dower land, thence westerly along said dower line as far as it goes, thence south along said dower land to the starting point, containing seventy-five acres more or less." The next eight deeds, including the deed to W. C. Lambert, the defendant's grantor, contained the following description: "Seventy-five (75) acres of lot of land Number 267 in the 13th District of Thomas County, Georgia, bounded on North by Mose Williams' land; on East by Mrs. H. J. Moore's [Madie T. Moore] land; on South by Public Road; on West by P. M. McKinnon's land." The thirteenth deed, from W. C. Lambert to the defendant J. W. Powell, was dated November 26, 1938, and conveyed by definite metes and bounds, a tract of land containing 119.1 acres. As shown by a plat attached, this deed purported to convey both the Lambert 75-acre tract and the land sought to be recovered by this action.

Clarence Lambert, as a witness for the defendant, testified in substance as follows: That he had possession of the 75-acre tract and the land in controversy, as a tenant of his father, W. C. Lambert, from August, 1936, until it was sold to defendant on November 26, 1938, but that he did not know who had possession of it prior to that time — "it seemingly had not been cultivated in several years;" that "he cultivated up to the fence line on the 75-acre tract side, and that he cultivated the land in controversy either by plowing or pasturing; that he planted some corn and peanuts on the part of the land in controversy."

Aaron Sharpe, the tenant in possession, testified that he rented the land in controversy from the defendant in 1940 and had cultivated it continuously since, paying rents to him. No one had interfered with his right to cultivate the land or demanded rents except Mr. Powell. He was familiar with the Lambert tract, and thought that the plat attached to the W. C. Lambert deed correctly represented its boundaries.

George R. Lilly, an attorney, testifying for the defendant, said that he had examined and was familiar with the deed records of Thomas County; and that no deed appeared of record from P. A. Moore to any person subsequently to June 30, 1909, conveying any part of land lot 267, in the 13th district of Thomas County, except a deed from P. A. Moore to Citizens Bank Trust Company, dated November 23, 1909.

A jury returned the following verdict: "We render verdict in favor of plaintiff that he have that portion of land above 75 acres deed calls for to W. C. Lambert, plaintiff to receive no rents, 1-22-46." Thereupon the court entered the following judgment: "Therefore said verdict is hereby made the judgment of the court; and it is hereby ordered and adjudged that plaintiff do have and recover of the defendants all of the land sued for which lies East of a tract on the same lot containing 75 acres (no more nor less), as described in deed to W. C. Lambert made in 1936, plaintiff's said land being bounded on the West by the line of said 75 acres referred to as the Lambert land, and bounded on the other sides as shown in plaintiff's petition. Let writ of possession issue in favor of plaintiff and against defendants for said land."

A motion was made in the court below to vacate and set aside the verdict and judgment, because they were too indefinite and uncertain to be enforced, and because the description of the land as contained in the judgment did not follow the verdict or the record, which motion was denied, and exceptions pendente lite were duly filed.

The defendants also filed a motion for new trial based only on the usual general grounds. Error was assigned on the judgment overruling the motion for new trial and on the exceptions pendente lite. 1. A motion was made in the court below by the defendants there to vacate and set aside the verdict and judgment in the instant case, because these were too indefinite and uncertain to be enforced, and because the description of the land as contained in the judgment did not follow the verdict or the record. Error is assigned on the refusal to sustain the motion. In dealing with the questions presented by this assignment, we may say at the outset that, where a judgment does not follow the verdict upon which it issued, it may be amended by order of the court rendering it so as to make it conform thereto. Code, § 110-311;Daniel v. Joseph Rosenheim Shoe Co., 152 Ga. 278 (109 S.E. 504). Consequently, it was not error to deny the motion for this reason. Hubbard v. Whatley, 200 Ga. 751, 759 (38 S.E.2d 738).

It is earnestly insisted that the verdict and judgment should be vacated and set aside because they are too indefinite and uncertain to be enforced. The presumptions are in favor of the validity of verdicts, and if possible a construction will be given which will uphold them. Atlantic Birmingham Railway Co. v. Brown, 129 Ga. 622 (4) (59 S.E. 278); Jackson v.Houston, 200 Ga. 399 (37 S.E.2d 399). "All that is essential to a valid verdict is substantial certainty to a common and reasonable intent." Short v. Cofer, 161 Ga. 587 (131 S.E. 362). A verdict is certain which can be made certain by what it contains or by the record. Jackson v. Houston, supra. "Verdicts shall have a reasonable intendment, and shall receive a reasonable construction, and shall not be avoided unless from necessity." Code, § 110-105. The court may construe a verdict, which is not explicit in its terms, in the light of the pleadings, the issues made by the evidence, and the charge.Harvey v. Head, 68 Ga. 247; Taylor v. Brown, 165 ca. 698, 700 (141 S.E. 898). With these well-established principles of law to guide the court, should we now hold as a matter of law that the verdict in the instant case should be avoided because of the attack made on it? By reference to the record, we see: (1) The declaration contains a clear description of the property claimed by plaintiff. (2) There was introduced in evidence a plat, showing the property claimed by the plaintiff, which witnesses testified correctly represented land which the plaintiff's predecessor in title had been in actual possession of for more than 20 years. (3) Hs. J. Moore, one of the defendant's predecessors in title, testified, without dispute, that the Lambert tract by actual measurement contained exactly 75 acres, that it was west of and adjacent to the plaintiff's land, and that during the period of his ownership of that tract, which was from 1912 to 1935, he recognized Mrs. Madie T. Moore's ownership of the land now claimed by the plaintiff, and there was no dispute with reference to the boundary line between the two tracts. (4) Mrs. Madie T. Moore, the plaintiff's grantor, testified that her grandmother had lived on the land in controversy; that she (Mrs. Madie T. Moore) inherited it from her mother; that she had been in actual possession of it since her marriage 40 years ago, and for some period of time prior thereto; that it (the land in controversy) had fences on and around it, and that her right of possession had never been disputed until now. And (5) the evidence as a whole, as we view it, demanded a finding that the plaintiff's immediate predecessor in title, Mrs. Moore, by reason of the continuance and character of her possession had acquired a good title by prescription for all of the land in controversy. Considering the verdict in the light of the pleadings, the evidence as a whole, and the charge of the court, we can not say as a matter of law that it is too indefinite and uncertain to be enforced. When we look at the entire record, as we have carefully done, we think that the verdict expresses with reasonable certainty the intention of the jury to find that the plaintiff was entitled to recover the land described in his declaration, and that the Lambert 75-acre tract, which joins the plaintiff's land on the west, was no part of the land described in the plaintiff's declaration. Therefore, it follows, from what has been said, that the court did not err in denying a motion to avoid the verdict, and consequently the judgment based thereon, upon the ground that they were too indefinite and uncertain to be enforced.

2. We do not think that the court erred in overruling the motion for new trial, based on the usual general grounds only. "Title by prescription is the right to property which a possessor acquires by reason of the continuance of his possession for a period of time fixed by the laws." Code, § 85-401. "Actual adverse possession of lands for 20 years, by itself, shall give good title by prescription against every one, except the State or persons laboring under . . disabilities." § 85-406. "Actual possession of lands is evidenced by in closure. 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." § 85-403. Applying these principles of law to the evidence in this case — which, as we view the record, shows that for a period of more than 20 years Mrs. Madie T. Moore, the plaintiff's grantor, had actual adverse possession in her own right of the land described in the declaration, that her possession did not originate in fraud, that it was public, continuous, exclusive, uninterrupted, and peaceable — we think that the jury was required to find in favor of the plaintiff's right to recover the land in controversy and the possession thereof.

Judgment affirmed. All the Justices concur.