Roe v. Doe , 32 Ga. 367 ( 1861 )

By the Court

Lumpkin, J.,

delivering the opinion.

This was an action of ejectment for lot No. 195, in the 7th district of what was formerly Carroll, now Harralson county. Both sides claim under the same-grantor, John A. Goolsby. The plaintiff deduces his title through a deed to Harrison Crow, dated 1st December, 1830, and recorded the 14th December, 1831. The defendant relies on a sheriff’s deed to the land, sold as the property of .Goolsby, the 5th of May, 1832, and the question as to the title in this case turns upon the date of the execution under which this sale was made. It was a Justice’s Court fi. fa. in favor of Simpson. Every place has been searched where it was likely any information could be had respecting the execution, and it cannot be found. Goolsby removed from DeKalb county, whence •the execution purports to have been issued, at the end of 1829. He was living in Meriwether county when the deed was made to Crow, in December, 1830. Diligent search has been made in DeKalb county during the years 1826, ’27, ’28, and ’29, during which Goolsby lived in DeKalb, and no vestige of the docket of the magistrate can be found. Considering the frequency that Justice’s Courts hold their sessions—that within a year, at least, after Goldsby left DeKalb, the judgment was rendered against him, which sold the land; especially as the case was not certioraried, or any other extraordinary delay intervened; consequently the judgment, it may be fairly inferred, was older than his deed to Crow.

So much for the conflict of title—and then as to the possession.

Elihu Williams went into possession in December, 1851, and has occupied the land, he and his tenants, ever since, continuously. For we cannot subscribe to the doctrine that the interval which necessarily elapses between the time of one tenant moving off and another moving on the premises, where there have been a succession of crops made every year, shall forfeit the benefit of the statute—although, in the language of the Court below, the chasm should be but for a single day. Our conclusion is, that the defendants; have the actual, as .well as the possessory, title.

As it respects the former ■ suit, all we have to say is, that whi.le we do not hold that, in order to' prevent, the statute from running, the action should be renewed within six months in the same form, it must be between 'the same'parties, and for the same cause of action. But the complaint was inifavor of Gresham,, and Gresham is one of the lessees of the plaintiff in the present case; but there'can be no recovery on this demise, as the deed to the land to Gresham was made while the land was held adversely.

’ Let the judgment' be reversed.