Harriss v. Howard , 126 Ga. 325 ( 1906 )

Lumpkin, J.

(After stating the foregoing facts.)

1. As to the actual possession of the lot of land involved in the controversy or any part of it, there was clearly a conflict in the evidence. In addition to this, the plaintiffs claimed that Joshua Harriss devised his lands to his two sons; that they had acquired the interest of one of these sons; and that they and those under whom they claimed had been in continuous possession of lot number 143 by being in actual possession of some of the adjoining land which, formed a part of the Joshua Harriss plantation. The defendant claimed a prescriptive title under a sheriff’s deed which included lot number 143 and the south half of lot number 178, which adjoins it. Aside from the contention as to possession of .a part of lot number 143, he contended that he had been in actual possession of the south half of lot number 178, and that thus his prescriptive title had ripened. If the conflict in the evidence in regard to actual possession at times of a part of the land lot in dispute is material, the presiding judge of course erred in directing .a verdict. If this be disregarded, under the undisputed evidence the will under which plaintiffs claimed and the deed under which defendant claimed each covered the interest in controversy; and •each party asserted constructive possession of the particular lot •or interest in it by reason of possession of land claimed to be included in his paper color adjacent to that in controversy, or forming with it part of a general tract. It is true that lot number 14'0 does not immediately adjoin lot number 143, but there is enough -evidence in regard to it and lot number 142 to indicate the ease just stated.

Section 3586 of the Civil Code is as follows: “Constructive possession of lands is where a person having paper title to a tract of land is in actual possession of only a part thereof. In such a case, the law construes the possession to extend to the boundary of the tract. Hence, adjacent owners may be in constructive possession •of the same land, being included in the boundaries of each tract. In such cases, no prescription can arise in favor of either.” Grimes v. Ragland, 28 Ga. 123, 127. Outside of this State, it has been ■declared by several courts that “Where two patents, grants, surveys, •deeds, or other conveyances are conflicting, each including land which the other purports to convey, and the senior claimant is in .actual possession of some part of the land lying within his grant, but not within the interlock, possession by the junior claimant of ■a part of the tract included in his conveyance outside of the interlock or lap gives him no constructive possession of lands lying therein.” 1 Cyc. 1131, and citations; White v. Burnley, 61 U. S. (20 How.) 235; White v. Ward, 35 W. Va. 418; Elliott v. Cumberland Coal & Coke Co., 109 Tenn. 745. A devise of land under a will duly recorded may give color of title. 1 Cyc. 1099, and note. On the subject of color of title see Street v. Collier, 118 Ga. 470.

As to the sufficiency of the description of the land in the will, it is said in Crawford v. Verner, 122 Ga. 816 (referring to a deed), “And where it can be gathered from the words employed in a deed that the intention of the grantor was to convey the whole of the tract owned by him, even a vague description of the same will suffice, if by competent parol evidence its precise location is capable of ascertainment and its identity can thus be established.” It was held that descriptive words very similar to those now considered were sufficient. Flannery v. Hightower, 97 Ga. 592 (5), 608; Priester v. Melton, 123 Ga. 375. Descriptions quite as general as tlrat here involved have been sustained, where the property could be identified and the description applied to it by parol evidence. See Jones on Real Property, §348; Henley v. Wilson, 81 N. C. 405; Carson v. Ray, 7 Jones, 609; Pittigrew v. Dobbelaar, 63 Cal. 59, 58 Am. Dec. 383; Harmon v. James, 7 Sm. & M. (Miss.) 111, 45 Am. Dec. 296; Prettyman v. Walston, 34 Ill. 175; Jackson v. DeLancey, 11 Johns. (N. Y.) 364.

It can hardly be contended that a devise by a testator-of “all of my lands” is not sufficient to carry title to his devisees to lands shown to answer that description. But it is suggested that though the devise was sufficient to convey title, it was insufficient to operate as color of title. We recognize, of course, the difference between a will and a deed, and the great liberality allowed in making wills and passing title -by them. But if we look at this case as if the 'description were in a deed, it would seem somewhat peculiar if a description were sufficient for the conveyance of good title, but insufficient to constitute even a semblance or color of title, — sufficient to convey, but not sufficient to purport to convey. Some decisions have held'that the description to constitute color must be as complete as that which is necessary for a conveyance of title. Hanna v. Palmer (Ill.), 61 N. E. 1051. It has been said that “the same degree of certainty was required.” Allmendinger v. McHie (Ill.), 59 N. E. 517; Luttrell v. Whitehead, 121 Ga. 699. But no case has come to the writer’s notice where it has been held that a description in a deed must be better to constitute color or semblance of title than to convey actual title. To what extent would the description, “all of my lands,” in the devise be color of title? To the extent that certain lands were shown to fall within the description “all of my lands.” How is this any less valid than if the description were “my home place,” or the “place where I reside,” or the like ? Any such description must be adjusted to its subject-matter by extraneous evidence. In Busch v. Huston, 75 Ill. 343, it was held that “Where a party in possession of land, of which his wife is seized, as heir, of an undivided part, fakes a quitclaim deed from one of the other heirs, who is seized of an undivided fourth thereof, and who simply released and quitclaimed all his right, title, and interest, -such deed will constitute good color and claim of title to the extent of the grantor’s interest, but no further.” In Holbrook v. Forsythe, 112 Ill. 306, 21 Cent. L. J. 170, it was held that a devise by a testator of all the lands belonging to him in a particular State did not give the devisee color of title to those lands in the particular State to which his devisor had not a good, but only a colorable title. This seems to be somewhat restricted, as persons often describe lands as “mine,” though their title, on careful legal examination, may be not entirely perfect. The headnotes in that case might appear at first view to hold that a description of all the land that the testator owned in the State of Illinois was not sufficient to constitute color of title at all. But a careful reading of the whole opinion will show that the ruling is as already stated. The rule in this State does not appear to be as strict as in Illinois. In Johnson v. Girtman, 115 Ga. 794, it was held that a quitclaim deed, taken in good faith, is sufficient color upon which to base prescriptive title, and that a conveyance of “all the right, title, interest, claim, or demand [the grantor] has or may have had in and to his interest in and to” a certain tract of land was sufficient to convey whatever interest the grantor had in the entire tract. In Tumlin v. Perry, 108 Ga. 520, 522, it was held, that, treating an obscurely written word as “owned,” or supplying “owned” as an omitted word, a description in a bond for title of “all the lands which James Knox owned and now lying on the road from the town of Canton, in said county, to Orange, about six miles and a quarter east of Canton, it being in the third district and second section of said county, all in one body, containing several lots and parts of lots,” construed in connection with the evidence identifying the land, was sufficient color of title to support a prescriptive title to the premises in dispute. In Cantagrel v. Van Lupine, 58 Texas, 570, it was held that “possession under a recorded deed, which described the land as call the land’ which the vendor owned ‘in Har-ris county’ is a sufficient description of the land, under the plea •of five years limitation, when it is shown that the vendor had a recorded deed describing the particular land.” In the present case the testator had recorded deeds covering the disputed and adjacent lands. They formed part of what was known as the Joshua Harriss plantation, of which he died in possession. In Davis v. Stroud, 104 N. C. 484, where W. sold a tract of land to D., who, ■after conveying several parts thereof to other parties, abandoned his purchase, surrendered his evidence of title, and gave up possession, and W. contracted to sell to H. the “residue” of the tract .sold to D., and executed title in pursuance thereof, it was held that in an action by persons claiming under H., for possession against •one alleged to be a trespasser, they must distinctly locate the residue by producing the deeds conveying away parts of the tract.

From the foregoing it will be seen that we hold the devise was ;a sufficient color of title. Had it not referred to or given any desigmation of lands at all, so that they could be identified, but had said, '“all my property,” or the like, thus giving no indication that any .land was to pass under it, a different question would have been pre¡sented.

“There can be no adverse possession against a cotenant until .actual ouster, or exclusive possession after demand, or express notice of adverse possession; in either of which events the cotenant .may sue at law for his possession.” Civil Code,, § 3145. It is contended that the evidence in this case showed an ouster, and that prescription ran in favor of the defendant. We are not prepared to hold that when the sheriff went with the defendant to the land, which was vacant, and, merely looking at it, or pointing to it, informed the purchaser that it was delivered to him, this alone would • constitute such ouster as would put the cotenant on notice and furnish a starting point from which prescription would run as to ■the half interest of the cotenant. In regard to whether actual possession was taken by the defendant (who claims an ouster), or to what extent, the question is rather one of fact than of law; and the -evidence is not so clear and free from conflict as to authorize the ■ court to direct a verdict.

Judgment reversed.

All the Justices concur, except Fish, G. J., >absent.