Strong v. Powell , 92 Ga. 591 ( 1893 )

Judgment reversed.

“If you believe from the evidence that the plaintiff and the defendant both trace title back to Mrs. Dorsey— Mrs. Mary E. Dorsey, then she is the common grantor of both, and the plaintiff has shown his right to recover so far as that is concerned, upon that ground. Upon that, gentlemen of the jury, I will charge you hereafter, you taking cognizance of what I charge you now, and applying it to what I will charge you hereafter in regard to this matter. In short, you must believe from the evidence that they both claim under Mrs. Mary E. Dorsey, to give the plaintiff- a right to recover at all.

“ Therefore, gentlemen of the jury, if you should believe from the evidence that Dr. Powell, the plaintiff here, holds under a title, a paper title, and that he has been in possession of a portion of this land continuously and adversely and under claim of right for as much as seven years, and that this piece of woodland that is in dispute is within the boundaries of Dr. Powell’s deed, he would have a right to recover upon th^t prescriptive right?' that is, though, gentlemen of the jury, providing that there was not another person who, under some legal claim, was disputing the possession or title to this strip of land and exercising acts of ownership under it; because, as to that title by possession, it must be continuous and uninterrupted. If, during the time, there is another contending for it and exercising acts of ownership over it, it may or may not interfere with his right to recover upon his prescriptive title. About that you will decide from the law that I have given you in charge.

“ In respect, gentlemen of the jury, to the boundaries of this land, I charge you, as applying the law of prescription to it, that although Dr. Powell’s deed may claim 93 acres and that there is not 93 acres in his claim, counting this strip of woodland in, yet if you believe from the evidence, taking the deed and the evidence applicable thereto, that as far as he claims is a portion of the 93 acres, then he would be entitled to the benefit of it.

“ The defendant, gentlemen of the jury, contends that this land belonged ’to Solomon Goodwin, Sr., way back of the rights of Mrs. Dorsey or any one this side of the Goodwins; and that Solomon Goodwin, Sr., deeded this land jointly to two of his sons, Solomon, Jr., and Starling; that Solomon had the north half, and that Starling had the south half (or what was substantially that) of' that land lot; and that after having been given to them that way, in consideration of the fact that that south half was worth so much more than the north half, that they agreed upon a boundary line which gave to the north half, say 120 acres, and to the south half 73 acres. Now, gentlemen of the jury, you must gather from the evidence what you believe upon this point. Do you believe that there was an agreed boundary between these parties ? Before you can pursue that matter any further, or make it any more applicable to the case, you must, believe that the two Goodwins established this agreed line between them. If you do not believe that, of course it is no element in the case and you need go no further in the investigation of that branch of it. But if you do believe, gentlemen of the jury, that that was the case, that that is true, that that was the line and that the subsequent owners of the land recognized that as the line, why then any one purchasing under that state of the ease, while that was in existence, would be bound by that. That line, though, gentlemen of the jury, must be afterwards recognized by the subsequent owners and the subsequent owners under which these parties claim; and if you should believe that it was so recognized by the subsequent owners, it would still exist as a fact.

“ I charge you in reference to that, that notwithstanding you may believe that this-was the agreed line between the two Goodwins and that it was recognized by subsequent owners, yet if you believe from the evidence that in the course of time Mrs. Mary E. Dorsey came to own the whole of this land, and that after coming to own the whole of it she ceased to recognize that boundary line, by giving to one person a deed to 93 acres, under whom Dr. Powell claims, and deeding to another 100 acres, under whom the defendant claims, that prior boundary line would go for nothing in this case.

“Now, in reference to the parties holding under a common grantor, it is conceded here that Mrs. Dorsey owned or had a deed to both of these lauds, but that the defendant says they do not hold under Mrs. Dorsey but they bought it at sheriff’s sale as the land of Solomon Goodwin. "Well, if you should believe that John M. Dorsey, the husband of this woman and under whom she claimed, bought this land from Solomon Goodwin, and that it was afterwards sold at sheriff’s sale, and that James O. Powell bought it as the property of Solomon Goodwin, but that Mrs. Dorsey 'filed a bill to set aside that sale, and a decree was rendered in that case, the decree that is before you, and that m consequence of that decree this defendant took Mrs. Dorsey’s deed, they would he estopped, in my judgment, gentlemen of the jury, to deny that they held under Mrs. Dorsey.” Other grounds of the motion are :

That the court admitted in evidence a deed from the defendant to Mrs. Maud Edwards, defendant objecting on the ground that the same was irrelevant and covered no part of the premises in dispute. As appears from the brief of evidence, this deed was dated March 15, 1889, and conveyed a parcel of land in the 18th district of DeKalb county, “ commencing at a stake on the west line of land lot two hundred, and running north along the line nine hundred and forty-two (942) feet, more or less, to the northwest corner of said lot; thence east along the north line of said-lot to the northeast corner of said lot; thence south along the line of said lot twenty-one hundred and forty-nine (2149) feet, more or less, to a point dividing said lot from that owned by Dr. T. S. Powell; thence west dividing these premises from Dr. T. S. Powell fifteen hundred feet, more or less; thence north twelve hundred and twenty-seven (1227) feet, more or less, to. a stake; thence west fourteen hundred and sixty-nine (1469) feet to the beginning point; all being part of land lot number two hundred, containing one hundred acres, more or less, except the right of way of the Air-Line railroad.”

That the court allowed the plaintiff to testify as to what was said and done by John Iiager at the time he sold the land conveyed in the deed to Julia L. Powell, declaring that part of the land'in dispute was of the land covered by his said deed, and pointing out where the boundary of the land was and how it was marked. The objection was, that this evidence was not binding on the defendant who did not claim under John Hager, and that there was nothing in the deed referring to the boundaries and landmarks pointed out by Hager.

Candler & Thomson, for plaintiff in error. Hall & Hammond, contra.