Elliott v. Robinson , 198 Ga. 811 ( 1945 )

1. This is the second appearance of the instant ejectment case. In the former decision, it was held that the undisputed evidence showed that the plaintiff had acquired prescriptive title by adverse possession under color of title for more than seven years before the alleged ouster; that evidence tending to show that the defendant had acquired title "to other land, three blocks away on Mathis Street," did not militate against the title of the plaintiff to the land described in her petition, and that in the circumstances the verdict for the defendant was unsupported by evidence, and the judge erred in overruling the general grounds of the plaintiff's motion for a new trial. Elliott v. Robinson, 192 Ga. 682 (3) (16 S.E.2d 433). On the next trial, the jury again found for the defendant. The plaintiff's motion for a new trial was overruled, and she again brought the case to this court. Upon the former trial, a witness testified that the land claimed by the defendant was not the land described in the plaintiff's suit, being land on a different street three blocks away. No such evidence appears in the present record, and from the evidence as a whole, including some testimony as to change in name of a street, the jury on the second trial were authorized to find that the tract claimed by the defendant was the same as the tract for which the plaintiff sued. Accordingly, the statement in the former decision as to "other land three blocks away" has no application under the present record.

(a) Nevertheless, the undisputed evidence again demanded a finding for the plaintiff on the basis of prescriptive title, unless the defendant established her own claim of prescriptive title, subsequently acquired.

2. In order to establish prescriptive title by possession for seven years under color of title, it is necessary to show, among other things, that the claimant was in actual possession of at least a part of the land, and that such possession was continuous for the period of seven years. Code, §§ 85-402, 85-403, 85-405, 85-407.

3. As to the character of her possession, the testimony of the defendant tended to show only that soon after she purchased the land in 1932, it being vacant at the time, she "put up posts to fence and bought the wire," but never did put up the wire because she could not get a stretcher, and that, within less than seven years before the suit was filed, she built a house on the land. A brother of the defendant testified, "My sister went into possession approximately one or two weeks after she purchased the land and had been in possession of it ever since." Held, that the evidence of the brother, being in the nature of a conclusion, should be construed in connection with the testimony of the defendant herself, and that both together did not show such actual possession for seven years as would be necessary to establish the prescriptive title claimed. Nor was the entire evidence in the case sufficient for that purpose. Gibbs v. State, 190 Ga. 207 (4) (9 S.E.2d 248); Shepard v. Chappell, 29 Ga. App. 6 (2) (113 S.E. 23). See also, in this connection, Royall v. Lisle, 15 Ga. 545 (4) (60 Am. D. 712); Durham v. Holeman, 30 Ga. 619; Bussey v. Jackson, 104 Ga. 151 (30 S.E. 646); McCook v. Crawford, 114 Ga. 337 (4) S.E. 225); Yundt v. Davison, 186 Ga. 179 (2) (197 S.E. 248); Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 (7) (3 S.E.2d 91).

4. In ground 12, the movant complained of the following charge: "A finding in favor of the defendant would mean that both the plaintiff and defendant have failed to recover — that is, that would mean that the plaintiff had failed to recover the land and mesne profits, and that the defendant had failed to recover for improvements." Held, that this charge was erroneous as tending to invite a compromise verdict, or one to the effect that neither party had title, whereas both parties asserted title by prescription under color of title; and, under the pleadings and the evidence, the jury could not properly have returned a verdict for either party without finding that such party had proved her claim of prescriptive title. Bussey v. Jackson, supra.

5. A complete, accurate, and pertinent instruction is not within itself erroneous because it fails to embrace an instruction which would be appropriate in connection therewith. Peeples v. Rudulph, 153 Ga. 17 (2) (111 S.E. 548); Jones v. State, 197 Ga. 604 (5) (30 S.E.2d 192). Nor is an assignment of error upon an omission to charge sufficient to raise any question of error for determination, where it does not state in substance any definite principle of law which it is contended the court should have given in charge to the jury. Smith v. State, 125 Ga. 300 (54 S.E. 124); Dickson v. Dortch, 183 Ga. 878 (2) (190 S.E. 26); Jones v. State, supra. Under these rules as applied to the instant motion for a new trial, even though it is contended in the brief for the plaintiff in error that the court erred in failing to charge the jury as to what are the essential elements of prescriptive title under color, there was no assignment of error sufficient to raise that question. But see, in this connection, Williford v. Swint, 183 Ga. 375 (188 S.E. 685); Brown v. Caraker, 147 Ga. 498 (5) (94 S.E. 759); Ashford v. Holliday, 169 Ga. 237 (7) (149 S.E. 790).

6. In ground 5, the movant contended that the judge erred in excluding certain letters and other documentary evidence by which she sought to establish the good faith of her immediate grantor. While the evidence was apparently relevant for the purpose, there was no evidence to dispute the bona fides of her claim or that of her predecessor, and, since the judgment must be reversed for other reasons, no ruling is necessary as to whether the exclusion of the proffered evidence would constitute reversible error. Teel v. Griffin, 142 Ga. 245 (2) (82 S.E. 662).

7. In so far as the remaining grounds of the motion for new trial are complete and sufficient in form to raise any question for determination, they show no error.

8. For the reasons indicated in notes 3 and 4, supra, it was error to overrule the motion for a new trial.

Judgment reversed. All the Justices concur, except Wyatt, J., absent because of illness.

No. 14966. FEBRUARY 7, 1945. Mrs. Harriette D. Elliott filed a suit in ejectment against Mrs. Sarah J. Robinson to recover "the following property located in Town of Nashville, Berrien County, Georgia, described as follows, to wit: Lots numbers 5, 6, and 7, in block No. 2, and each being 50 by 100 feet, and also lot No. 4 in said block, being 50 by 150 feet, all of said lots lying in one body and situated in the southeast corner of Swindle and Ninth Streets, and taken together forming a square 150 feet each way;" and mesne profits. The defendant filed a plea of not guilty, and therein also alleged "that she and those under whom she holds have been in adverse possession of the premises sued for, under color of title, for more than seven years prior to the bringing of the plaintiff's suit." The answer was amended by pleading $200 as the value of improvements, alleged to have been made upon the land, as a set-off against mesne profits, and seeking to impress a lien upon the land for any balance. Upon the trial, the jury found in favor of the defendant. The plaintiff's motion for a new trial was overruled, she excepted, and this court reversed the judgment. In the third and fourth divisions of the opinion, it was held: "3. The instant case is in ejectment for recovery of possession and mesne profits of definitely described land in the southeast corner of Ninth and Swindle Streets in the Town of Nashville, Georgia. The uncontradicted evidence shows that the real plaintiff and her immediate grantor, in whom demises were properly laid, entered in good faith and were successively in continuous adverse possession, under color of title, of the land so described, for more than seven years before the alleged ouster. Consequently the evidence demanded a finding for the plaintiff on the basis of title by prescription. . . Evidence tending to show that the defendant had title by purchase from the city . . to other land, three blocks away on Mathis Street, that had been sold and bought in for city taxes, was irrelevant to the issues as made by the pleadings, and did not militate against the title of plaintiff to the land described in her petition. In the circumstances, the verdict for the defendant was unauthorized by the evidence, and the judge erred in overruling the general grounds of the motion for a new trial. 4. No ruling will be made on the assignments of error in the special grounds of the motion for a new trial, all founded on evidence introduced by the defendant on the basis of her claim of title to the lot on Mathis Street, thus presenting questions that can not arise on another trial of the case."

After the return of the case to the trial court, the defendant amended her plea by alleging $425 as the value of improvements, instead of $200 as asserted previously. The pleadings were not otherwise amended. The case was again tried, the verdict being in favor of the defendant. The plaintiff's motion for a new trial was overruled, and she excepted.

It appeared from the evidence that the defendant based her claim as to color of title upon: (1) a tax deed executed by the marshal of the City of Nashville to the city, dated May 1, 1917; and (2) a deed from the City of Nashville to the defendant, dated July 8, 1932; the property described in both these deeds being as follows: "all that tract or parcel of land situated, lying, and being in the City of Nashville, Georgia, being 100 by 150 feet, more or less, bounded on north by unnamed street, east by an alley, south by lands of Mrs. F. M. Cook, west by Mathis Street."

J. H. Gary was sworn as a witness for the plaintiff on both trials. His testimony on the last trial was in part as follows: "The lands in controversy here are lots 4, 5, 6, and 7 in the Griffin survey. It fronts west on what was originally known as Swindle Street. I understand the name has been changed to Mathis Street. At the time we owned the property it was known as Swindle Street. I have no interest in the world in the litigation. . . The street where the property is was Swindle. I had occasion in some other little transactions that I looked into to refresh my memory about it when the controversy came up. . . Q. In 1940 when this case was tried before, you didn't testify it was Swindle Street? . . Let me refresh your memory. In answer to a question, you made this reply: ``I couldn't say what street it was on. I don't remember all those streets in there, only I know the location of the building. It was on the street they call Mathis now?" A. Yes, sir, . . I know now, because I made an investigation for some other deeds touching that street. Have not changed my testimony from the last trial. I didn't swear positively what street it was on then, I don't think, because I hadn't had occasion to look into it. I didn't have the deeds here, or the memoranda of it. I looked on the records down there in the clerk's office to see about the street. On the deed records, some of these deeds here. These deeds are all records of the court. I looked at them. One time I was there when the land was sold, when Agnes Futch bought this property, and I knew there was a Swindle Street over there somewhere, but I hadn't refreshed my memory about it." In other respects, the evidence for the plaintiff was substantially the same as on the former trial. The defendant, on the former trial, introduced a witness who testified in effect that the property claimed by the defendant was not the property for which the plaintiff sued, but was a different tract, situated three blocks away. This witness was not introduced upon the second trial.

As to the character of her possession, the defendant testified: "I received this deed from the City of Nashville, paid $75 for it. I was living in Brunswick, Georgia, when I purchased the property. . . There was nothing on it, just open land. . . After I purchased it I bought some posts and put them up around there. I never did get a wire up. I bought it. I couldn't get any stretcher, and I built a small house on it. . I had a building built on the property in controversy. I don't know exactly what date I had it built, but it has been at least seven years, I know, because I loaned a little money to Mr. DeLoach, and Mr. DeLoach has been dead close [to] eight years, and I built the house right after he died, and I know it has been built at least seven years. [Suit was filed on January 10, 1940; the date of trial was December 9, 1943.] When I received the deed to the land in controversy, I went in possession of it right immediately. As evidence [of] the fact of my possession I put up posts to fence and bought the wire, but I couldn't get the stretchers to put the wire up; but I bought the posts." Q. By the court: "When did you go in possession of it?" A. "In 1932, immediately after I bought it. I think it was in 1932."

It is recited in the brief of evidence: "Plaintiff tendered in evidence a portion of the testimony, from the original transcript of the evidence that was taken in this case when it was tried at the September term, 1940, of the defendant who testified in the case: ``Q. Do you know what part of 1937 that you put it — (the house on the land)? A. (Interposing) It must have been November or December. Built the house? Q. Yes. It must have been November or December.'"

Jack Cook testified: "I know about the time my sister purchased the land from the city. I don't remember the date but remember the occasion. My sister went into possession approximately one or two weeks after she purchased the land and had been in possession of it ever since. She made improvements and took possession from a week to two weeks after she purchased it."

The plaintiff's motion for new trial contained the usual general grounds, and numerous special grounds complaining of the admission and rejection of evidence and the refusal to direct a verdict for the plaintiff on the issue as to title, and assignments of error on various excerpts from the charge and the refusal of an oral request to charge.