Priester v. Melton , 123 Ga. 375 ( 1905 )

Cobb, J.

The paper signed by A. H. Smith was offered as color of title, but we think it was properly rejected, as the description of the land therein was not, in the absence of extrinsic evidence showing that the description was capable of application to a particular parcel of land, sufficient to identify any particular land. Luttrell v. Whitehead, 121 Ga. 699 (1).

2. It appeared that A. H. Smith was dead, that there was no demise in the name of his legal representative, and that N. J. Priester had conveyed all of his interest in the land in controversy to Sophia Priester. Hence there could be no recovery on the demise in the name of A. H. Smith, nor on that in the name of N. J. Priester. The case, therefore, was one in which Sophia Priester was the plaintiff and Melton was the defendant; and on the trial of the issue thus made, N. J. Priester was not, by the death of Smith, rendered an incompetent witness under any of the provisions of the Civil Code, § 5269.

3. The testimony of N. J. Priester, that he had been in possession of tbe premises in dispute, claiming them as- his own, should have been admitted, but when admitted it did not make out a prima facie case in favor of Sophia Priester. The code declares that “a plaintiff in ejectment may recover the premises in dispute upon his prior possession alone, against one who subsequently acquires possession of the land .by mere entry, and without any lawful right whatever.” Civil Code, § 5008. See also Parker v. Railroad Co., 81 Ga. 392; Bleckley v. White, 98 Ga. 597 (3); Ellis v. Dasher, 101 Ga. 5; Horton v. Murden, 117 Ga. 73 (6, 7). While the section of the code, literally construed, would authorize a recovery only when the plaintiff proves prior possession in himself, the rule is broader than this. An heir or a devisee who has never been in possession may recover upon the prior possession under a bona fide claim of ownership of his ancestor or devisor at the time of his death, unless a better adverse title is shown by the defendant. Wolfe v. Baxter, 86 Ga. 705; Brundage v. Bivens, 105 Ga. 806; Watkins v. Nugen, 118 Ga. 375 (1). One who claims under an heir or devisee may recover on proof that the ancestor or devisor died in possession bona fide claiming ownership, unless the defendant shows a better adverse title by possession or otherwise. Bagley v. Kennedy, 85 Ga. 703. One who claims under another, who in turn claims under an executor’s deed, may in like manner recover upon proof of possession of the testator at the time of his death. Hadley v. Bean, 53 Ga. 685. In all of the cases cited, in which the plaintiff was permitted to recover, not on his own prior possession, but on the prior possession of the person under whom he claimed, such person was either an ancestor or a devisor who died in possession, and therefore whatever title he may have had passed from him at the time he was an actual possessor. _It would seem, upon principle, that one who claims under a deed from a living person7who was actually jlnjDossession at the time the deed™was made?^s]muldjbe_giyenjhj_right Jo_recover on the prior possession of his grantor to the same extent that' an heir or devisee can recover on the prior possession of bis ancestor or devisor. The right' in all of such eases is given because the person so claiming the title' is supposed to have acquired by descent, will, or deed, as the case may be, whatever rights would be drawn to the possession; and therefore, for any such right to be acquired by one, it must appear that he acquired it from a possessor. The possessor is allowed to recover upon his bare possession. He may bargain away this right. But one who claims under him, and asserts a right to recover upon his possession, must show that he acquired title either directly or indirectly from him while he was in actual possession. See, in this connection, the remarks of Judge Trippe in Hadley v. Bean, supra. If the evidence of N. J. Priester had been admitted, it would have shown possession in him at some time in the past, but it would not have shown that he was in possession at the time he made the deed to Sophia Priester. The plaintiff’s case would, therefore, have failed even if the evidence had been admitted. There was no error in- granting a nonsuit.

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.