Bayard v. Hargrove

• Decision Date: 31 January 1872
• Citation: 45 Ga. 343
• Court: Georgia Supreme Court
• Parties: N. J. BAYARD, plaintiff in error. v. MALINDA HARGROVE et al., plaintiffs in error.

45 Ga. 343

N. J. BAYARD, plaintiff in error. v. MALINDA HARGROVE et al., plaintiffs in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

The same parties vice versa.

Streets. Dedication. Before Judge Parrott. Floyd Superior Court. July, 1871.

This was ejectment by Doe upon the demise of the heirs-at-law of Z. B. Hargrove, against Roe, casual ejector, and said Bayard and another, tenants in possession, for the one-half undivided interest in a strip of land thirty-three feet wide, in Oostanaula street, Rome, Georgia. The defenses were the general issue and prescription. *Plaintiff traced title from the State into his lessors to the lot of land containing the premises in dispute, proved the possession by the defendants, and the annual value of the premises for rent, and closed.

For the defense it was shown, as follows: In 1834, Hargrove and others proposed to the Inferior Court of said county to give to them and the people of said county, parcels of said land lot, to be selected by said Court for a Court-house, jail, etc., etc., and "half of the proceeds of the sale of town lots on said lot of land, " and keep up a ferry, etc., if they would permanently locate the county site at said place, and that this proposition was accepted and acted upon. The land was laid off into lots and streets, including said street, and the lots were sold. What the terms of the deeds to purchasers were, did not appear.

In 1849 or 1850, the Mayor and City Council of Rome concluded to sell a strip on each side of said street, from river to river, thirty-three feet wide, and ordered the same to be done. In 1850, one Johnson bought the premises in dispute from the said Mayor and Council and took possession of it and began building upon it. From him, title was traced into the tenants in possession, and it was shown that they, and those under whom they claimed, had been in the actual possession of the premises and buildings thereon since 18S2 till the commencement of this suit in March, 1869. Evidence, pro and con, was introduced as to the bona fides of this possession, etc. There were six heirs-at-law of Hargrove, and to the prescription as to one of them, Mrs. Fort, it was replied and shown that she had been under coverture sufficiently long to avoid prescription. There was evidence of a sale by Hargrove to Shorter, but it is not material.

Pending the trial, various questions arose as to the admissibility of evidence, etc., but they are not passed upon here. The Court charged the jury as follows:

"This is an action brought by the heirs of Z. B. Hargrove, deceased, against N. J. Bayard, tenant, etc., for the recovery *of a certain store-house and lot in the city of Rome, Georgia. The plaintiffs claim title to the property as the heirs-at-law of Z. B. Hargrove, deceased, who, they allege, was the owner of the soil. They claim that this property is in the street, and that the street was dedicated to the town of Rome, or the county of Floyd, for public use as a street; that the public was entitled to use it as a street only; that it has been abandoned by the city of Rome as a street, and that, as Z. B. Hargrove did not part with the title to the soil, they now own it as heirs-at-law.

"If this street was permitted to be used as a street by the town of Rome, and it belonged to the plaintiffs, or any one else, the title to the soil does not pass to the town or county, unless there was a deed to the soil. When the owner of land is paid for a road or right-of-way over his land only, the county in which the road lies cannot transfer the land when the road or right-of-way is abandoned. But if such owner had made a fee-simple deed, then the city or county could transfer the title, if it did not interfere with the right of others. If there was no fee-simple deed to-this lot, and it had been abandoned, then it reverts to the former owner or proprietor or his heirs-at-law. There are two modes of showing title to land: one is by showing a chain of paper titles, beginning with the grant from the State and bringing the title down to the plaintiff in the action; all titles to lands emanate from the State. The plaintiffs insist on a perfect paper title to one undivided half of this land from the State of Georgia. You will, therefore, see, first, if there is a grant from the State of Georgia to lot number two hundred and forty-five, in the twenty-third district and third section of this county, and if so, whether this property is part of that lot. See to whom the State granted the lot. If it was granted to one Major Pace, then his title is perfect; next, you will see to whom did Pace make title. See if he made a title, as is claimed, to Phillip W. Hemphill, according to theforms of law; if he did, then that passes a perfect title to the lot to *Hemphill. Then see if Hemphill sold one undivided fourth part to Z. B. Hargrove, deceased, and made a title; next, see if Hemphill sold and conveyed, by deed, an undivided fourth to William Smith, and if so, whether Smith sold to said Hargrove, de-ceased, that undivided fourth. If you find that the title has been conveyed in this way, according to law, then the evidence shows a title to one undivided half in Z. B. Hargrove, and it remains in him until divested in some way or other. If said Hargrove died intestate, then all his lands passed to his heirs-at-law; you will, therefore, see, from the evidence, who these heirs are; if the plaintiffs are the heirs, then they have the title until it is legally divested; and if it is shown now to be in them, they are entitled to recover, unless it is divested in some legal way. The defendant places his defense, first, upon the contract between the original town company and the Inferior Court of Floyd county for the removal of the county seat to Rome. It is the duty of the Court to construe that contract. The Court, therefore, charges you, that the contract embraces a simple proposition to bind the parties to it to do certain things, and that the said contract does not convey the land in the city, except certain lots for a Court-house, jail, churches, etc., to the city or the county, and no title passes under it to the streets, and if there is no evidence showing that the title passed to the city or county, then the defense on this ground fails.

The plaintiffs must recover on the strength of their own title, and they cannot recover, unless they show title to the property. The second ground of defense is, that there is an outstanding title to the property in another person, and that the plaintiffs have parted with the title; and to show this, the deed from the heirs of Hargrove to Alfred Shorter has been introduced. It is the duty of the Court to construe this deed also. The Court charges you that the difficulty arises on one clause in the deed, which is as follows: "And also all the right, title, claim or demand, " etc. (See copy of deed.) This is an independent clause in this deed, and if there were *no other descriptive words of the property intended to be conveyed, it would, of itself, make a complete conveyance of all the property of the kind in the town of Rome. The Court construes this cause to convey all the town property that was owned by Z. B. Hargrove, deceased, in the town of Rome. You will see, therefore, whether this property was town property at the time said Hargrove died. Did it belong to him at his death? If so, it is transferred by this deed. If, from the evidence, you find this lot was not town property, it is not conveyed by the deed; if it was town property, it is conveyed. You are to ascertain whether it is town property or not from the evidence. See what the people of this neighborhood understood by town property; what the words town property mean. If the evidence don't show that it was Hargrove's property at the time of his death, it does not pass under the deed. But if he owned the title in soil, it belonged to him. If he owned it, either in possession, remainder or reversion, it belonged to him. You must take into consideration the circumstances connected with the making of the deed—not considering any parol testimony to contradict, add to, or diminish its terms, and if you find that the title to this property passed under this deed, then the plaintiffs cannot recover.

The third point of defense is what is known as the Statute of Limitations. The Code changes the phraseology, and it is called now title by prescription, but the same rule applies in both instances, and the Code expresses what the law was before and since its adoption. The Act of 1856, and the Acts in force prior to that Act, applies to that case. If the defendant, or those under whom he holds, have held peaceable and adverse possession of this land, as provided by the Acts and the Code, for seven years before this suit was begun, then the plaintiff's action is barred, unless they were under disability as provided by law. The same principles were laid down in the Code, as you will see from the following sections: 2636, #2637, 2638, 2639, 2640, 2641, which he read.

*When the Statutes of Limitation are relied on, the possession must be such as named in the Code. It must be adverse, continuous, uninterrupted and peaceable, and under color of title. The defendants insist that Riley J. Johnson held such possession, from 1850 to the time he sold to William Ramey, and that Ramey held "such possession until he sold to Bayard, and that Bayard has since held such possession. If either of them held such possession for seven years, and it was public, peaceable, etc.; if they claimed under a purchase with a deed or deeds, as a matter of right, and their possession was not simply permissive on the part of the plaintiff, then the defendant will be protected. You will see whether the property was claimed by these parties as their own; whether they were in the actual possession of it by an enclosure or building on the ground. Actual, adverse possession for twenty years...