Strickland v. Padgett

1. Where the petitioner sought to enjoin the defendant from trespassing upon his land immediately north of that owned by the defendant, and in count 1 of the petition alleged a described dividing line, and in count 2 alleged a separate and distinct dividing line, and the jury returned a verdict for the petitioner without stating on which count it was based, the court erred in overruling the defendant's motion to set aside the verdict, and in overruling the special ground of the motion for new trial, the ground in each motion being that the verdict was too vague, uncertain, and indefinite to be capable of execution by a judgment conforming thereto.

(a) The court likewise erred in overruling the special ground of the motion for new trial assigning error on the charge of the court which, while failing to instruct the jury that if they found for the petitioner their verdict should show on which count it was based, informed them that if they found for the petitioner their verdict would be: "We, the jury, find in favor of the plaintiff, and that the defendant be enjoined."

2. The special ground of the demurrer, attacking the allegations of paragraph 6 of the petition as not showing by what signs, markings, or other means the line claimed by the petitioner to be the true dividing line is defined, and as not alleging the location of the line, is without merit for reasons shown in the opinion.

3. The special ground of the demurrer, complaining that the location of the dividing line beyond which the defendant is alleged to have encroached is not alleged, is controlled by the preceding ruling. Nor is the petition subject to the objection that the petitioner has failed to show in what manner the parties had acquiesced, as alleged, in the line which the petitioner claimed to be the true dividing line between the properties, and which had been undisputed for at least twenty-five years.

4. The allegation as to the damage sustained by the petitioner from the trespass of the defendant is not subject to the objection that no facts are alleged to show in what manner the petitioner has been damaged.

5. The allegations of the petition as to acquiescence related to a dividing line claimed by the petitioner as a definite, fixed, and certain line, and not to an unascertained. uncertain, or disputed line which may be established by acquiescence by acts or declarations of both parties, as provided in the Code, § 85.1602. The court did not err in failing to charge the provisions of this section.

6. For the reasons stated in the preceding headnote, the court did not err in failing to charge that to establish a dividing line the acts or declarations of one adjoining landowner alone will to suffice.

7. Where, as here, is not show to what issue the provision of the Code, §§ 85-401, 85-402, and 85-403, as to title by prescription, as to possession as the foundation thereof, and as to how such possession may be evidenced, are related, the ground of the motion for new trial that the court erred in not charging these Code sections is without merit, because it is incomplete within itself.

8. The objection that the court failed to charge in certain language as to title by possession is without merit, in that it is incomplete within itself by failing to show to what material issue it was applicable.

9. The complaint is special grounds 9 and 10 of the motion for new trial, that the court erred in not giving a certain charge with respect to the agreement alleged by the defendant to trace and survey the dividing line between the properties based on the contention that this charge "covers a material issue in the case made by the pleadings and the evidence and embodies a correct principle of law," is without merit in that such grounds are incomplete within themselves in not pointing out the material issue to which the charge was applicable.

10. The statement of the court, in charging on the preponderance of evidence, that it should be sufficient to incline the "free and impartial mind to one side of the issue or issues rather than to the other," was not cause for reversal as being calculated to cause the jury to believe that the preponderance or superior weight of the evidence is that which is sufficient to incline a mind acting, not from reason, but unrestrictedly and without being circumscribed or bound by reason, to one side of the issue rather than to the other. The charge was a substantial compliance with the Code, § 38-106, and certainly, in connection with the word "impartial," the word "free" could not reasonably be said to have misled the jury as contended, and in the absence of a request for a literal charge of the Code section does not require a reversal.

11. In charging the law as to the settlement of a boundary line by agreement and the execution thereof the court did not err in stating immediately thereafter that "as to whether the rule of law is applicable in the case, will be determined by you according to what you believe to be the evidence in the case with respect to that." While it is contended in this ground that the court thus failed to state the correct method to guide the jury which was that they should determine the issue by what they believed to be the truth of the evidence, the only reasonable construction of the charge is that the jury was to determine the issue by what the evidence showed to be the truth of the issue, and it could not be said that they were misled by the language used.

12. The statement of the court that if the jury believed that previous litigation between the predecessors in title of the parties had fixed the boundary line here involved that adjudication would be res judicata and the matter of the boundary line settled, unless the jury found that the parties had by an agreement, duly executed, fixed another line notwithstanding the verdict in the other case, was not subject to the objection that the court erred in charging on the principle of res judicata since no such plea had been filed. The record of litigation between the predecessors in title of the present parties, including a decree fixing the boundary line as described in count 1 of the instant petition, had been introduced in evidence, and such evidence was admissible in the chain of title of the petitioner and as fixing the boundary line between lots 142 and 181, so as to make the issue settled or adjudicated, unless, as the court charged the jury should find that, as contended by the defendant, a new line had been established by agreement duly executed notwithstanding the former adjudication. The charge did not pretend to instruct the jury as to the effect of a plea of res judicata, or that if sustained it would constitute a bar to the present suit, no such plea having been filed; but the charge, properly construed, related to the matter of title as shown by the documentary evidence.

No. 14821. MAY 4, 1944. STATEMENT OF FACTS BY DUCKWORTH, JUSTICE. J. E. Padgett filed a petition against E. D. Strickland to enjoin him from committing certain trespasses on the lands of the petitioner and to recover damages. The petition was subsequently amended by designating the original allegations as count 1 and by adding a new count as count 2. In each count the petitioner described the lands owned by him as being lots 142 and 143 in the 16th land district of Echols County, Georgia, and as being bounded on the south by the lands of the defendant. The petition alleged actual adverse possession by the petitioner and those under whom he claimed, of the lands involved to the dividing line between his land and that of the defendant for a period of fifty years or more; and that the dividing line alleged by him had existed as the true dividing line for at least twenty-five years, and had been so recognized and acquiesced in by both the adjoining owners. It was alleged that the defendant had, however, within twelve months before the filing of the suit, entered upon the petitioner's land and committed certain acts of trespass to his injury and damage in the sum of $150 or other large sum; that the defendant will continue to commit such acts of trespass from day to day; and that the injury occasioned by the trespass is incapable of exact computation and redress in damages, and if permitted to continue, will cause the petitioner to suffer irreparable injury. It was further alleged that the lands of the defendant lying south of the petitioner's lots were lots 180 and 181 in the said land district. The allegations of each count were the same except as to the description of the dividing line between the properties. In the first count it was stated that the dividing line was located and established as follows: "Beginning at a corner just south of the petitioner's dwelling house, formerly known as the Elihu Morgan dwelling house, and near the old public road leading from Statenville, Georgia, to Jasper, Florida, and running thence due west along an old fence row to the Alapaha River and from said corner said line runs in the opposite direction due east to the eastern boundary of lots numbered 181 and 142 in the said sixteenth district." In the second count it was stated that the land of the defendant lay south "of the north original land-lot line of said lots as the same was laid out and run upon the State survey thereof." The title of the petitioner was alleged as follows: "Your petitioner acquired title to the lands hereinbefore recited to be owned by him under and by virtue of a deed from W. M. Henderson, J. M. Henderson, and L. M. Henderson, dated September 16, 1938, and by a quitclaim deed from T. H. Henderson, dated January 3, 1939, all of the aforementioned parties being heirs at law of F. M. Henderson, who acquired the said lands from W. T. Staten by warranty deed dated December 1, 1915. The said W. T. Staten acquired the said lands from A. G. Garbutt Lumber Company under deed, dated November 6, 1906; the said A. G. Garbutt Lumber Company having acquired said lands from J. B. Morgan and J. F. Johnson as administrators upon the estate of Elihu Morgan, who acquired said lands from one John C. Simms by deed, dated May 4, 1856." The prayers were for injunction, damages, and for process.

The defendant filed general and special demurrers, all of which were overruled, and the defendant excepted pendente lite. The defendant also filed an answer, admitting that he was the owner of the lands adjacent to those in the possession of the petitioner, defendant's land being lots 180 and 181 and lying south of the petitioner's lots 142 and 143; but denied that the dividing line claimed by the petitioner in each of the two counts of the petition was the true dividing line; denied that the petitioner had been in actual possession of the lands claimed to be owned by him up to the dividing line as claimed to be owned by him in each of the two counts of the petition; denied that any line had been established between the lands by acquiescence of the respective owners; denied that he had committed any acts of trespass on any lands of the petitioner; and denied that the petitioner had suffered any damages. In respect to the paragraph of the petition alleging title, the defendant answered as follows, "Further answering this paragraph of plaintiff's petition, this defendant can neither admit nor deny the other allegations contained therein."

Further answering, the defendant alleged that for some time prior to November 16, 1939, the petitioner and the defendant did not know exactly the location of the dividing line between their respective lands; that a few days before November 16, 1939, they employed one G. E. King, a deputy surveyor of Echols County, Georgia, to trace and survey the dividing line between such lands, and agreed to abide by such line as he might trace and survey, each agreeing to pay one-half of his charges; and that, accordingly, on that date King did actually trace and survey the same and made a map of his survey. The defendant also alleged that, after the line had been so traced and surveyed both the petitioner and the defendant agreed on the same as the true dividing line, and immediately thereafter the county surveyor, son of G. E. King, did, at the direction of the petitioner and the defendant, blaze the trees on the said dividing line as traced and surveyed by G. E. King, indicating clearly where the dividing line was and now is; that thereupon the plaintiff paid one-half of such surveying charges and the defendant paid one-half of the charges; and that the agreement between the parties became fully and completely executed, and both are bound by the terms and conditions of the same. The map of such survey as made by G. E. King was attached to and made a part of the defendant's answer, and showed an unbroken line across the north side of lot 181 as the line traced and surveyed by G. E. King under the circumstances above related. The map also showed, in a broken line near to and across the north side of lot 181, the dividing line which the petitioner then contended to be the correct dividing line between the lands in question, which broken line appears slightly below the line shown as the one surveyed by King. It was further alleged that, after the dividing line had been so agreed upon, the defendant removed board timbers from the land in dispute, that is, the land between the dividing line claimed by the petitioner and that claimed by the defendant, and no objection thereto was made by the petitioner. The defendant also built a wire fence partly across the south side of lot 181 and approximately seven feet south of the north boundary of the dividing line, as so surveyed and agreed upon, without any objection from the petitioner and at a cost to the defendant of approximately $50.

On the trial there was evidence pro and con in respect to the alleged contention of the defendant that there was a dispute between the parties as to the dividing line, in consequence of which they entered into an agreement, for a sufficient consideration, to trace and survey the line and to abide thereby, and that the agreement was fully executed; but the evidence in that connection is not set out, in view of the disposition of the case by a ruling which is not dependent upon that feature.

The pertinent evidence is as follows: The petitioner introduced certain deeds to support his allegation of title to lots 142 and 143 in the 16th land district of Echols County, Georgia, and testimony to show that the dividing line between his lots and those of the defendant ran due west, along an old fence row, from an original corner, and also from that corner due east to the eastern boundary of lots 142 and 181; lot 142 belonging to the petitioner, and lot 181 belonging to the defendant, and being south thereof; such line being claimed by the petitioner as the "established line" set out in count 1 of his petition. He also introduced part of an injunction suit brought on January 17, 1914, by W. T. Staten against L. J. Strickland, who was admittedly the father of the present defendant, to restrain L. J. Strickland from trespassing upon the land here involved and claimed by the petitioner, and also seeking damages. The former petition alleged that W. T. Staten was the owner of lot 142 in the 16th land district of Echols County, Georgia, and had been in continuous, exclusive, uninterrupted, and peaceable possession thereof for fifty years or more, having acquired title thereto in 1906 by deed from A. G. Garbutt Lumber Company that L. J. Strickland was in possession of and claimed title to lots 180 and 181 adjoining the lots of the petitioner Staten on the south, and had held possession and claimed title thereto for thirty or forty years; that during said time, there had been a plainly marked and well-defined dividing line between the property of the petitioner and said lots of land claimed by the defendant, which had been acknowledged and conceded by him to be the true dividing line; and that the possession and improvements of the petitioner and those under whom he claims, and the possession and improvements of the said defendant of the lands claimed by them, respectively, have been regulated according to said line, — the possession and improvements on the petitioner's said property extending to said line on the north side, and the possession and improvements of the defendant on the lands claimed by him extending to the same and on the south side thereof. By amendment of the former petition, the petitioner alleged that "the line to which he claims title commences at a corner which until recently stood at a point just south of the Elihu Morgan dwelling house and near the public road leading from Statenville, Georgia, to Jasper, Florida, and runs due west along an old fence row through the cleared lands and on to the Alapaha River. Said line also runs from said corner due cast to the eastern boundary of lots 181 and 142." The record in the previous case also showed an answer by the defendant, denying that the line was as claimed by the petitioner Staten, and alleging another dividing line, and denying trespass and damage to the petitioner. On September 15, 1915, there was a verdict by the jury for the petitioner as follows: "We, the jury, find for the plaintiff the premises in dispute. We further find damages to the amount of $100. We also find that the defendant be enjoined." A decree was entered accordingly.

In the present case, the petitioner introduced in evidence a certified copy of the 1820 State survey of the 16th land district of originally Irwin County, Georgia, which district the parties agree is now the 16th land district of Echols County, Georgia, and which includes the lots here involved. This plat shows lots 180 and 181 of the defendant as being south of lots 143 and 142, respectively, of the petitioner, and shows in the legend, indicated by the sides of an eight-cornered star, the "north line" or direction, and also a line in the same general direction representing a magnetic variation of 5 degrees and 30 minutes. A witness, a deputy county surveyor who surveyed the dividing line, under an agreement between the parties here, as claimed by the defendant, testified: "It [the plat] does not show it [lot 142] running due east and west: it's about 5 degrees 30 minutes off."

The jury returned a verdict for the petitioner, as follows: "We the jury, find a verdict in favor of the plaintiff, J. E. Padgett, and that the defendant be enjoined as prayed." The defendant moved to set aside the verdict on the ground that it failed to state on which count of the petition it was found; and that as each count set up a different dividing line, the verdict was too vague, uncertain, and indefinite to be capable of execution. The defendant also filed a motion for new trial on general and special grounds. The bill of exceptions assigns error on exceptions pendente lite to the judgment overruling the grounds of demurrer to the petition as amended; the judgment overruling the motion to set aside the verdict; and the judgment overruling the motion for new trial. 1. The motion to set aside the verdict is based on the ground that it is too vague, uncertain, and indefinite to be capable of execution, for the reason that each count set up a different dividing line, and the verdict failed to state on which count it was found. The same reason is assigned in special ground 15 of the motion for new trial, excepting to the charge of the court that, if the jury found for the petitioner, their verdict would be, "We, the jury, find in favor of the plaintiff, and that the defendant be enjoined;" and in special ground 16 of the motion for new trial, excepting to the verdict on the same ground. All of these exceptions may be disposed of in one ruling.

It is conceded by the parties in their briefs that the petitioner is the owner of lots 142 and 143, and that the defendant is the owner of lots 180 and 181, all in the 16th land district of Echols County, Georgia, and that the question is: what is the true dividing line between the properties? In count 1, the petitioner set up the dividing line by a certain description, and in count 2 by a different description. He alleged that, before the trespass charged against the defendant, there had been no dispute between the parties. The defendant contends to the contrary, and further asserts that, whatever may have been the dividing line, such line was by agreement between the parties and its execution changed to a totally different line from any alleged by the petitioner; and that the agreed line so defines his lands that the allegation of trespass is without foundation in fact. The petitioner denies that any binding agreement was entered into to trace and survey the boundary line. The sustain his contentions as to the dividing line, the petitioner introduced evidence which has been referred to in the foregoing statement of facts. The defendant, plaintiff in error, contends that thereby two different and distinct lines are to be inferred; that as the verdict of the jury was only a general one and did not show on which count of the petition it was founded, it is necessarily incapable of enforcement; and that, accordingly, the court erred in overruling his motion to set aside the verdict. This contention must be upheld. Under the evidence introduced by the petitioner in support of count 1, the dividing line ran due west from an old original corner to the Alapaha River, and from such corner ran due east to the eastern boundary of lots 142 and 181. In other words, the line, beginning at the Alapaha River, ran due east to the original corner just below the old Elihu Morgan dwelling house, and continued, in an unvarying prolongation, from the corner due east to the eastern boundary of lots 142 and 181. Also, according to the record of litigation between W. T. Staten and L. J. Strickland, who are the respective predecessors in title of the present petitioner and defendant, the dividing line was fixed by the same description as that used in count 1 of the present petition. Such an adjudication was, of course, binding, not only upon the parties thereto, but upon their privies, and the record was properly admitted as against the defendant in this case. "A decree in chancery is evidence, not merely of the fact of its rendition, but also of all the consequences resulting therefrom. It may be given in proof against persons who were not parties to the bill, in support of the plaintiff's right or title to sue." Hardwick v. Hook, 8 Ga. 354. See also Powell on Actions for Land, 173, § 144; Wardlaw v. McNeill, 106 Ga. 29,33 (31 S.E. 785), for a full discussion of this principle. Hence, if the petitioner had confined his contentions with regard to the dividing line as set out in count 1, and the verdict of the jury had been founded on that count, it would have been clearly enforceable with a decree in conformity therewith. But the petitioner also introduced, apparently in support of count 2, a photostatic copy of the State survey of 1820, of file in the office of the Secretary of State, of the 16th land district of formerly Irwin, now Echols County, Georgia, which has been referred to in the foregoing statement of facts, and which under the interpretation of a witness, a surveyor, showed that the dividing line between lot 142 of the petitioner and lot 181 of the defendant does not run "due east," but runs from the original corner at an angle with the dividing line referred to in count 1 as running "due east," and with a magnetic variation of 5 degrees and 30 minutes therefrom, and which, according to the plat presented to him, would lie slightly below a "due east" line claimed by the petitioner to be the southern boundary of lot 142. Thus it appears that two separate and distinct boundary lines are shown by the evidence; and as the verdict of the jury does not disclose on which count it is based, or indicate the particular dividing line between the properties, it necessarily follows that such verdict is incapable of enforcement by a proper decree thereon, as it can not be determined to which definite line the defendant may enjoy his possession of lot 181 without violating a decree of injunction based only on the general verdict. For these reasons, the court erred in overruling the defendant's motion to set aside the verdict and in overruling special grounds 15 and 16 of the motion for new trial.

2. Since the case is being remanded for another trial, rulings will be made on the special demurrers which apply to the same allegations in each count of the petition, the general grounds of demurrer having been expressly abandoned; and on special grounds of the motion for new trial not dealt with in the preceding division of the opinion. One special ground of demurrer attacks the allegations of paragraph 6 of the petition that there has been a plainly marked and well-defined dividing line between the lands of the parties for a period of at least twenty-five years. It is contended that the allegations fail to set forth by what signs, markings, or other methods or means such a line has been plainly and well defined, and that its location is not alleged. The petition in count 1 alleged that the dividing line ran from a designated corner south of the petitioner's dwelling house, formerly known as the Elihu Morgan dwelling house, due westalong an old fence row to the Alapaha River, and that from the same corner the line ran due east to the eastern boundary of lots 142 and 181. In count 2 the line was alleged to be the north original land-lot line of lots 180 and 181. We think that these allegations sufficiently informed the defendant of the petitioner's claim, and it was unnecessary to repeat them in the paragraph which is attacked.

3. Another special ground of demurrer attacks a sentence in paragraph 7 of the petition, on the ground that it does not state the location of the dividing line beyond which it is alleged the defendant had not encroached until recently. The second or last sentence is also specially demurred to on the ground that the averments that the described dividing line has been fully recognized by the parties as the true dividing line, and that they have acquiesced in the correctness of the same, do not show the location of the dividing line or how the defendant has acquiesced therein. In so far as the objections for lack of information respecting the location of the line are concerned, they are controlled adversely to the demurrant by what is said above in dealing with the special demurrer to paragraph 6 of the petition. As respects the objection that it is not shown in what manner the parties had acquiesced in the line, the petitioner alleged that the possession of his lands had been evidenced by occupation of the dwelling and outhouses on said lands, by the cultivation of a farm thereon, by the working and leasing of timber thereon for timber and other purposes, by the erection and maintenance of fences and other improvements, and in general by the exercise of an open and exclusive dominion over and throughout said lands. In paragraph 6 the petitioner alleged that there had been a plainly marked and well-defined dividing line between the properties for a period of at least twenty-five years; and then alleged that the defendant had never, until recently and within the past year, exercised or attempted to exercise any acts of ownership over any part of the land lying north of said line; that the line had been fully recognized as the true dividing line between the properties claimed by the parties respectively; and that they had acquiesced in the correctness of the same. All of the allegations of acquiescence were not required to be shown in the one paragraph 6; and we think that acquiescence in the sense intended by the petitioner is sufficiently shown in the petition; the averments not purporting to show the establishment of an unascertained uncertain, or disputed line by acquiescence for seven years, as contemplated by the Code, § 85-1602, but alleging a line which has been definite, fixed, undisputed, and recognized as such line by both parties for at least twenty-five years. This ground is without merit.

4. Another special ground of demurrer attacks an allegation in paragraph 9 of the petition, viz., that the petitioner has been damaged by the defendant's trespassing in the sum of $150 or other large sum, on the ground that no facts are alleged to show in what manner the petitioner has been damaged in the amount claimed or any other amount. The special damage complained of was described as caused by the tearing down and removal of turpentine cups, fences, and other improvements. It was not necessary to allege the damage with the detailed exactness required by proof. The petition shows what was damaged and the amount of the damage, and was sufficient to enable the defendant to plead thereto. Under Griffin v. Russell, 144 Ga. 275, 288 (87 S.E. 10, L.R.A. 1916F, 216, Ann. Cas. 1917D, 994), the petition was good against this special demurrer.

5. Since the case is being reversed, and the evidence may not be the same on another trial, no ruling is necessary on the general grounds of the motion for new trial or on special ground 4 thereof, which merely relates to the evidence. Special ground 5 complains that the court erred in not charging that acquiescence for seven years by acts or declarations of adjoining land owners (Code, § 85-1602), shall establish a dividing line. The only acquiescence alleged by the petitioner was with respect to the dividing line before the time when the defendant claimed that a new line was established by an agreement between the parties, duly executed, in November, 1939. Since seven years had not elapsed, any charge as to such acquiescence under the Code would have been inappropriate; and since the defendant denied any acquiescence, as alleged by the petitioner with regard to the line before the agreement alleged by the defendant, the failure to charge as urged by the defendant was not harmful to him.

6. In special ground 6, complaint is made that the court erred in failing to charge that both land owners must exercise acts of ownership to the dividing line or make declarations indicating such line to be the true dividing line between the coterminous owners, and that acts or declarations of one owner alone will not suffice. This objection is without merit for the reasons shown in the preceding ruling.

7. Special ground 7 complains that the court erred in not charging the provisions of the Code, §§ 85-401, 85-402, and 85-403, as to title by prescription, as to possession as the foundation thereof, and as to how such possession may be evidenced; it being contended that each section was applicable "to one of the main issues in the case." Inasmuch as it is not made to appear to what issue each section was applicable, the ground is incomplete within itself and presents nothing for decision. As a matter of fact, however, the defendant admitted that the petitioner was the owner of lots 142 and 143, and that the only issue was as to the dividing line between such lots and the defendant's land. Besides, the petitioner alleges his title through a chain from W. T. Staten, and the defendant, while denying that the dividing line was as set forth by the petitioner, merely answered the petitioner's allegation of title by saying that "this defendant can neither admit nor deny" such allegation, and failed to state that such inability was because of want of sufficient information. In these circumstances the allegation must be taken as true, and it was not necessary to prove it. Code, § 81-103; English v. Grant,102 Ga. 35, 37 (29 S.E. 157); Jones v. Teasley, 25 Ga. App. 784 (2) (105 S.E. 46). Therefore, when the petitioner introduced in evidence the record of the litigation between W. T. Staten and L. J. Strickland in 1915, showing an adjudication that the dividing line was the same as that described in count 1 of the present petition, he became prima facie entitled to a verdict finding the line as claimed, without showing title by prescription, subject to being defeated only by the defendant showing that, notwithstanding such dividing line, he and the petitioner had subsequently entered into and executed an agreement fixing another dividing line. For these reasons, a charge on the provisions of the Code, §§ 85-401, 85-402, and 85-403, was unnecessary, and no error is shown in this ground.

8. Special ground 8 complains that the court erred in failing to charge in certain language as to title by possession for twenty years, "because it covers a material issue in the case made by the pleadings and the evidence, and states a correct principle of law;" but the ground, being incomplete within itself in not pointing out to what material issue it was applicable, presents nothing for decision. Besides, it is without merit for the reasons shown in the preceding paragraph of this opinion.

9. Special grounds 9 and 10 complain that the court erred in not giving a certain charge with respect to the alleged parol agreement between the parties to trace and survey the dividing line between the properties; it being contended that such a charge "covers a material issue in the case made by the pleadings and the evidence and embodies a correct principle of law." Inasmuch as the grounds are incomplete within themselves in not pointing out the material issue to which the charge would have been applicable, nothing is presented for decision.

10. Special ground 11 complains in substance that, in defining preponderance of evidence, the court stated that it should be sufficient to incline the "free and impartial mind to one side of the issue or issues rather than to the other;" it being contended that under the Code, § 38-106, the court should have used the word "reasonable" instead of the word "free," and that the latter word instructed the jury that the preponderance or superior weight of the evidence is what is sufficient to incline a mind acting, not from reason, but unrestrictedly and without being circumscribed or bound by reason, to one side of the issue rather than to the other. While the word "free" might have been inapt, we can not say that it confused the jury in the manner contended, because, if the minds of the jury be "free," they are unhampered and unshackled by confusion or cloud of thought and capable of functioning normally and reasonably; and certainly, in connection with the word "impartial," the jury would not have received the impression that they could let their minds run counter to the dictates of logic and reason. The charge was a substantial compliance with the Code section, and in the absence of a timely request to charge such section literally, the instruction as given is not ground for a new trial. See Shingler v. Bailey,135 Ga. 666 (3) (70 S.E. 563): Lowry v. Lowry, 170 Ga. 349,350 (153 S.E. 11, 70 A.L.R. 488): Studstill v.Bergsteiner, 25 Ga. App. 405 (2) (103 S.E. 691).

11. Special ground 12 complains that, in charging the law as to the settlement of a boundary line by agreement and the execution thereof, the court erred in stating immediately thereafter that, "as to whether the rule of law is applicable in the case, will be determined by you according to what you believe to be the evidence in the case with respect to that;" it being contended that thereby the court failed to state the correct method to guide the jury, which was that they should determine the issue by what they believed to be the truth of the evidence. The only reasonable construction of the charge is that the jury was to determine the issue by what the evidence showed to be the truth of the issue, and the instruction could not be said to have misled the jury.

12. Special ground 13 complains that the court erred in charging the jury as to the principle of res judicata, in the circumstances hereinafter pointed out, without such a plea having been filed. The petitioner had introduced in evidence a part of the record of litigation between W. T. Staten and L. J. Strickland, in which a decree had been entered, establishing the boundary line between the lots now owned by the parties here by the same description as that used in count 1 of the petition. The court instructed the jury in substance that if they believed such litigation covered the same property here involved and fixed the boundary line, such adjudication would be res judicata as to the interest involved, and the matter of the boundary line would be settled, unless they found that the parties had by agreement, duly executed, fixed a line notwithstanding the verdict in the other case. The court did not pretend to instruct the jury as to the effect of a plea of res judicata, or that being sustained it would constitute a bar to the present proceeding, and the petitioner had, of course, made no attempt to avoid the present suit but was the instigator of it. The decree in the other litigation was admissible evidence of the determination of the boundary line between lots 142 and 181 as being the same as that described in count 1 of the present petition, and was binding upon W. T. Staten and L. J. Strickland and their privies, and available evidence for the petitioner, successor in title to Staten, in showing his chain of title even in a suit against one who might not have been a party to the previous litigation. See Wardlaw v. McNeill, supra. The court did not purport to charge on any question of bar to the present suit, as would be involved in a plea of res judicata, but only charged quite properly that the dividing line as concluded by the decree in the former litigation would be res judicata, that is, settled and determined as between the parties here, if the jury found that they were privies respectively of W. T. Staten and L. J. Strickland. This ground shows no error.

Judgment reversed. All the Justices concur.