Brenner v. Wright , 187 Ga. 770 ( 1939 )

Duckworth, Justice.

Mrs. Winnifred Brenner brought an ejectment suit against J. G. Wright as executor of the will of Miss Annie E. Wright, to which suit the defendant filed two separate pleas, (1) title to the premises involved by prescription based on twenty years adverse possession, and (2) title based on a resulting trust in the defendant’s testatrix, by reason of the payment by her of the purchase-money of the land sued for. The jury rendered a verdict in favor of the defendant on each of these pleas. The plaintiff filed a motion for new trial, which was overruled, and she excepted. This is the third appearance of the case in this court. The evidence relating to the plea of prescription has been substantially the same on each trial. The first trial resulted in a verdict for the plaintiff; the trial court granted a new trial, and the plaintiff excepted. Brenner v. Wright, 183 Ga. 510 (188 S. E. 694). This court there held that the evidence did not demand a verdict in favor of the plaintiff, which was tantamount to holding that the evidence would have supported a verdict for the defendant. The second trial resulted in a verdict in favor of the defendant on his plea of resulting trust; and this court held that the evidence, which was substantially the same as on the first appearance, was insufficient to support the verdict in favor of that plea. Brenner v. Wright, 185 Ga. 280 (194 S. E. 553).

Since the evidence on the plea of prescription on all three of the appearances of the case' in this court is substantially the same, the rulings made by this court on the legal effect of the evidence are now the law of the case. On the first appearance this court having held that the evidence would support a verdict for the defendant, and on the second appearance having held that the same evidence did not support a verdict in favor of the plea of resulting trust, and since there were only two pleas of the defendant, it logically follows that this court held on the first appearance of the case that the evidence supported the defendant’s plea of prescription. Applying that ruling, the verdict in favor of the defendant’s plea of prescriptive title was supported by the evidence.

In grounds 11, 12, and 13 the plaintiff complains because of the failure to comply with certain requests to charge which in substance would have instructed the jury that permissive possession would not ripen into title by prescription; and.that if the defendant’s testatrix held possession of the premises in dispute by permission of Alexander P. Wright, such possession was permissive possession, and title by prescription could not be acquired by her until she asserted an adverse claim of right to the premises, and knowledge of such claim was communicated to Alexander P. Wright, and that she must hold such possession for at least twenty years from the date of such notice of her adverse claim. It is contended that without such instructions the jury were unable properly to understand the words “permissive possession,” and were led to believe that they were authorized to find in favor of the plea of title by prescription if they believed from the evidence that the defendant’s testatrix had been in possession of the premises involved for twenty years. The requests to charge were sound principles of law applicable to this case, but the following instructions given the jury adequately covered these principles: “Permissive possession can not be the foundation of a prescription, until an adverse claim and actual notice to the other party. . . If you believe that the defendant’s testatrix, Annie E. Wright, held possession of the property, claiming it to be her own property, and that her possession was open, notorious, and exclusive, and if you should believe that Alexander P. Wright knew that' she was holding possession of the property, claiming it to be her own property, during his lifetime, and that after his death she continued to hold it peaceably, openly, notoriously, and exclusively, under a bona fide claim of right and title to it, and that the period drrring which she so held it, if you believe she so held, it, including that during the life of her brother, Alexander P. Wright, and thereafter, was as much as twenty or more years prior to the filing of this suit by this plaintiff, then and in that event, gentlemen, you would be authorized to find in favor of the defendant’s plea of prescriptive title to the property.” Therefore it was not error to refuse to charge as requested.

The other grounds of the motion for new trial dealt with the plea of resulting trust; and since the judgment based upon the verdict in favor of the plea of prescriptive title is affirmed, it is unnecessary to make any ruling upon the verdict and the assignments, of error pertaining to the plea of resulting trust.

Judgment affirmed.

All the Justices concur.