Worthy v. Kinamon

McCay, Judge.

1. To make out a good title by prescription,- the defendant must have been four years in possession, bona fide, and under claim of right: Code, 2643. The defendant shows possession in Dooly, of Gordon county, in 1866, not four years. To make out his prescriptive’ title,' he insists that somebody, other than the plaintiff, must have been in possession from the lime the house was taken in 1864, up to the time he came into the possession of Hampton, Dooly’s vendee, in 1866. But who was that somebody? Perhaps it was the very person who, illegally, took the horse. No prescription could run in his favor. Perhaps, up to 1866, the horse was concealed, or out of the State. Perhaps the holder may have recognized the title of the plaintiff. In either of these cases, the prescription would not run: Code, 3643, 2637. To enable one to tack the possession of another to his own, he must show that he claims under that person, and the possession of that person must be such, as if continued long enough, would ripen into a title: Code, 2647.

2. There is some question in the books as to whether a capture, by a private person, during a war, who turns the property over to his government, does not vest a title in the government, or in one who gets title from the government: 1 Kent Com., 103, 104; Ib., 99, 117. But private persons cannot capture for their own benefit: 1 Kent Com., 117. Under the facts as shown by the record, this was a robbery. The two men, even if soldiers, were not with their company, and they denied being soldiers. They were evidently thieves, bummers, men who followed the army to steal, and who formed a part of that horde of robbers who usually attend an army. We think the charge of the Court was error on both the points excepted to.

Judgment reversed.