Brinkley v. Bell , 126 Ga. 480 ( 1906 )

Cobb, P. J.

(After stating the foregoing facts.)

The rule of the common law, that where both parties in ejectment derive title from a common source, the plaintiff is not required to show title in such person, has been often recognized by this court as being applicable to an action for the recovery of land brought under the common-law form as well as such an action brought under the code. See cases cited in 4 Michie’s Enc. Dig. 77. If the plaintiff claims as a remainderman under a deed creating a life-estate in one person and a remainder to him, and the defendant claims under a conveyance from the life-tenant, the parties derive whatever title they have from a common grantor, that is the grantor in the deed creating the life-estate and the remainder. Brundage v. Bivens, 105 Ga. 805. If it appears either from the plaintiff’s petition or from the defendant’s answer - that each party claims under a common source, this of course is' sufficient to make the rule applicable to the case. It is contended that the rule has no application to the present case, for the reason that the fact that the parties claim under a common source does not appear from the pleadings but only from the evidence. We have found no distinct ruling that when this fact appears from the evidence only, the rule "is applicable; but it has been the almost uniform practice to apply the rule in such case, and we know of no decision holding that the rule is applicable only where the fact of common source of title appears from the pleadings. If the common-law form of ejectment is followed, all that is required in |he pleading is a petition showing the usual allegations of lease, entry, and ouster, and an answer denying these allegations. If suit is brought under the ■code, the abstract of title must set forth the title relied on for recovery, and the abstract of each conveyance is to be treated in the nature of a demise laid by the plaintiff. If in the present ease the plaintiffs had brought their action laying the demises in their own names and in the name of Simeon Bell or his legal representatives, this would have been sufficient to authorize evidence of a common source of title, in order to make out a prima facie case. As the ■abstract of title attached to the petition shows that they derive title through Simeon Bell, we see no reason why this would not be sufficient to authorize any evidence to show that the title in Simeon Bell was a sufficient foundation for a recovery by them. The deed from Seaborn J. Bell to Bothwell came from the custody of the defendant, and this would raise an inference that the defendant claimed under that conveyance. This inference would remain until the contrary appeared. As long as it remained the plaintiffs would stand as having made out a prima facie case for recovery. Of course we do not mean to hold that the defendant is bound to claim under a deed simply because he has possession of it. He may rely upon two "sources of title. But when a deed comes from his custody and is admitted in evidence against him, the burden 'is east to show better title than the deed conveys, if his title under the deed is not sufficient to meet the case made by the plaintiff, unless, as appears to have been held in one ■case, the defendant expressly denies that he claims under the deed. In McConnell v. Cherokee Mining Co., 114 Ga. 84 (the ease referred to), the original record shows that the defendant produced the deed, but insisted that he did not claim under it, asserting that he derived title from a source independent of and distinct from that under which the plaintiff claimed. In the present case there-was no denial by the defendants that they claimed under the Both-well deed. On the contrary the plea distinctly set up that they did,, and heirs of Bothwell were vouched in to defend.

We think the court properly granted a new trial. On another trial the defendant may introduce evidence of any title that she has-acquired to the premises -either through S. J. Bell or otherwise. If the land originally belonged to Simeon Bell, the exclusive possession by S. J. Bell for seven years without the payment of rent would create the presumption of a gift, and convey title to him,, unless there was evidence of a loan, or a claim of dominion acknowledged by S. J. Bell, or a disclaimer of title by him. Civil Code,, § 3571. If such exclusive possession had been completed before the execution of the deed of 1867, Simeon Bell would have been at. that time without title to the property. The evidence in the present ease was not sufficient to show title in Simeon Bell, or to raise a presumption of a gift from him. But all these facts may be inquired into on another trial. The extent of our ruling now "is-simply that the deed from S. J. Bell to Bothwell, coming from the custody of the defendant, was sufficient to make out a prima facie case in the plaintiffs, and to put the defendant on proof of her title.

Judgment affirmed.

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