Morris v. Gibson

Jenkins, P. J.

Charles W. Morris, as administrator of W. A. Adams, deceased, brought suit against Mrs. G. T. Gibson in trespass for $1297, the alleged value of the interest of his intestate as an owner of a half undivided interest in certain lands in certain timber cut therefrom by the defendant, it being alleged in the original petition that the timber was cut by the defendant by and through her agent, Alford. By amendment the plaintiff struck the allegation that the timber was cut by the defendant acting through her agent, proceeded on the allegation that the timber was cut by the defendant, and alleged that on June 1, 1920, the defendant, acting through her agents Pig Adams and R. L. Brown, pointed out the lot of land in question—lot No. 325—to P. E. Alford as her property, and sold it to Alford and put him in possession thereof, and that, acting upon such representations, Alford cut the timber on said land. It appears from the evidence that on April 7, 1920, Mrs. Gibson, the defendant, entered into a contract with P. E. and F. L. Alford, whereby she sold to them a certain tract of land lying in the 22d and 23 d districts of Floyd county, composed of various lots and portions of lots, and that on May 8, 1920, she executed to the purchasers her bond for title therefor; the premises being known as the Hurt farm. After the execution of the contract of sale Mrs. Gibson employed Brown, a surveyor, to survey the land sold, instructing him to get Pig Adams, the father of plaintiff’s intestate, to point out the lines, as he knew the lines and knew where the property was located. The surveyor, in company with the purchasers, went upon the premises and surveyed the land under the direction of Pig Adams, and surveyed lot of land No. 325 of the 22d district of said county, as pointed out by said Adams, into the tract sold by Mrs. Gibson to the Alfords. It appears that under the survey and contract of sale, Alford went into possession of lot of land No. 325, to which Mrs. Gibson had no title and which was not intended to be included by the terms of the contract. It appears further that on January 6, 1922, Alford and defendant entered into a further contract, whereby Alford agreed to cut the timber on the farm sold to him by defendant and pay defendant $4 per thousand feet of lumber for the same, to be applied on the purchase price of the land, and that under this agreement he cut the timber on lot of land No. 325 and paid the proceeds of the same, at the agreed price, to the defendant, to be applied on the purchase price of the land; and that the defendant told Alford where the corners of the land sold him were, and visited lot 325 on several occasions while he was cutting timber therefrom.

The plaintiff claimed title under a deed to his intestate dated December 30, 1912, conveying the following property: “All that part of lots Nos. 343 and .344 in the twenty-third district and third section of Floyd county, Georgia, and all that part of lot number 324 in the 22nd district and third section of Floyd county, which lies south and west of the following described line: commencing at a point .in lot 344 on the east side of the Etowah river, known as the old ferry, and running along the old fence row, bearing east or nearly so, to the Bass ferry road, and across said road and across a field lying east of said road, to the back fence on the east side of said field; thence along said fence in a southwesterly direction until it intersects the district line; thence south until it intersects the line dividing land lots Nos. 323 and 324, in the twenty-second district and third section of Floyd county, the whole tract containing two hundred and seventy acres, more or less. Also an undivided half interest in lot of land No. 325 and all of lot No. 323, both in the 22d district and 3d section of Floyd county, excepting and reserving an undivided one-half interest in all minerals and metals, being the same interest reserved by Mrs. Yaleria Bass in deed to G. J. Briant, Sept. 11th, 1865. The property herein conveyed is the same as described in said deed by Mrs. Yaleria Bass to G. J. Briant, recorded in Book £FF/ page 41, except that part lying on the west side of the Etowah river, which has been sold to M. F. Johnson.”

It appears that Adams never took actual possession of any portion of lot of land No. 325 under this deed, but that he did go into possession under the deed, that he lived on a portion of the land and had cultivated a portion of lot of land No. 323, which cornered with and was contiguous to lot of land No. 325, for more than ten years.

At the conclusion of the plaintiff’s testimony, upon motion of the defendant’s counsel, the court granted a nonsuit, to which ruling exception is taken.

Judgment reversed.

Stephens and Bell, JJ., concur.