Caraker v. Brown
| Decision Date | 17 February 1922 |
| Docket Number | 2510. |
| Citation | 111 S.E. 51,152 Ga. 677 |
| Parties | CARAKER v. BROWN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
There being no evidence that the administrator had ever been in possession of the premises sued for, or that any order for the sale thereof had ever been granted to him by the court of ordinary, or that there was any necessity for the administrator to recover them in order to pay the debts of his intestate, or any circumstances tending to show the necessity for their recovery in order for the administrator to distribute the same, a verdict for the defendant was demanded; and the court erred in not granting a new trial on the ground that the verdict was contrary to the evidence. Adams v. Phillips, 132 Ga. 455, 64 S.E. 467; Winn v. Simmons, 141 Ga. 680, 81 S.E. 1106.
The fact that the intestate of the plaintiff owed no debts, and that all the legatees under the will of the husband of said intestate, including the latter, accepted and took possession of the legacies given them under said will, would not estop her administrator from asserting title to be in her to land in which she was given a life estate, under said will. To constitute an estoppel the testator must have affected to give property not his own, which was true in this case; but he must also have given a benefit to the person to whom that property belongs, which is not true in this case, as the wife did not get any benefit under the will to which she was not entitled independently of the will, and such legatee must elect to take under the instrument. Civ. Code 1910, § 4610; Johnson v. Hayes, 139 Ga. 218, 221, 77 S.E. 73.
The court did not err in refusing a request to charge which was couched in argumentative language. McGee v. Young, 132 Ga. 606, 64 S.E. 689. The written request set out in the second ground of the defendant's amendment to his motion for new trial has this infirmity. Besides, this request was faulty in not enumerating all the elements necessary to give a prescriptive title.
The possession of property by the vendee of a legatee, by the legatee, and by the executor of the will under which the legatee was given such property may be tacked to make out the full period of the prescriptive term.
The court did not err in refusing a written request to charge based upon the theory that the defendant had acquired a prescriptive title by 20 years' possession, because there was no view of the evidence under which said charge was pertinent. Where a husband and wife jointly occupy premises as a home, prescription will not run in favor of one against the other. Carpenter v. Booker, 131 Ga. 546, 62 S.E 983, 127 Am.St.Rep. 241.
The court did not err in refusing to charge the jury, when requested so to do by the defendant, that, when husband and wife occupy property jointly, the presumption of law is that such possession is that of the husband, and that the burden was on the plaintiff to rebut this presumption; the undisputed evidence showing title in the wife to such property during their joint occupancy of the premises in dispute.
The court did not err in submitting to the jury the question whether the premises in dispute were embraced in the deeds under which the plaintiff claimed, as the court could not as matter of law determine this question from the description embraced in these muniments of title.
Where the owner of land permits another to sell it to a third person, and at the same time executes a formal disclaimer of title thereto, which disclaimer is attached to the deed under which said land is so sold, and on the strength of which disclaimer the vendee buys and accepts title, the maker of said disclaimer, and his heirs would be estopped from afterward asserting title to the property so conveyed.
The court did not err in charging the jury that the muniments of title under which the plaintiff claimed were sufficient to convey the title to the premises in dispute from the common grantor to the intestate of plaintiff.
The twelfth, fourteenth, and fifteenth grounds complain of the admission of certain deeds and a mortgage. These grounds do not contain copies of these instruments, nor state their contents substantially. For this reason these grounds cannot be considered. Callaway v. Beachamp, 140 Ga. 207, 78 S.E. 846.
The court did not err in excluding the record of the homestead of Hamilton Brown, Sr.: (a) Because the original homestead papers, and not the record thereof, were the highest and best evidence, the loss of the originals not being shown. Brown v. Driggers, 62 Ga. 354; Larey v Baker, 85 Ga. 687, 11 S.E. 800. (b) Because the homestead was void, not having been approved at the time fixed for the hearing of the application. West v McWhorter, 141 Ga. 590, 593, 81 S.E. 859. (c) Because the homestead proceedings were irrelevant, declarations of one in possession of the property in favor of his own title being only admissible to prove his adverse possession (Civ. Code 1910, § 5767), and title being shown in Hamilton Brown, Sr., at the date of the homestead, thus rendering evidence of adverse possession unnecessary and irrelevant to establish his title.
When property has a descriptive name, it may be conveyed by that name; and such description will prevail over one which is intended to be further description, but which is uncertain and imperfect. Bunger v. Grimm, 142 Ga. 448, 83 S.E. 200, Ann.Cas. 1916C, 173.
Additional Syllabus by Editorial Staff.
Though possession never surrendered by a grantor is held under the grantee, and not adverse to his title, an explicit disclaimer by the grantor of such relation and a notorious assertion of right in himself will render it adverse.
Within Civ. Code 1910, § 4164, providing that possession, to be the foundation of prescription, must be in the right of the possessor, and not of another, the possession of the executor is in his own right as such until he assents to a devise under section 3895.
A grantor's will devising the granted lands to a third person was an explicit disclaimer of the grantee's title, rendering his executor's possession adverse to the grantee.
Error from Superior Court, Baldwin County; J. B. Park, Judge.
Action by Joe Brown, administrator, against C. T. Caraker. Judgment for plaintiff, and defendant brings error. Reversed.
This was an action of ejectment in the fictitious form commenced on December 20, 1913. The demise was laid in the name of Joe Brown as administrator of Katherine Brown. The suit was brought to recover "that tract of land situated and lying in the city of Milledgeville, Baldwin county, Ga., known in the plan of the city as part of lot No. 3, square No. 24, bounded on the east by lands of Bell Brown; north by Washington street; south by lands formerly owned by Hamp Brown estate; west by Elbert street." The defendant filed his plea of not guilty, and set up title by prescription by possession for 20 years, and by possession for 7 years under color of title. The defendant amended his answer by setting up valuable improvements made upon the premises, under a bona fide claim of title, of the value of $1,024.53, and prayed that the value of such improvements be adjudged a lien upon the land if the plaintiff should recover.
Both parties claimed under W. G. Lanterman. On March 28, 1871, Lanterman conveyed to Hamilton Brown certain lands, including the premises in dispute. On January 7, 1878, W. G. Lanterman conveyed by deed to Samuel Walker lands embracing the premises in dispute, which was duly recorded; and attached to said deed was the following instrument:
The plaintiff claimed by mesne conveyances from Samuel Walker into Katherine Brown. He introduced his letters of administration on Katherine Brown's estate, granted by the court of ordinary of Baldwin county on November 18, 1913.
Hamilton Brown and his family lived on these premises for many years prior to his death in February, 1902. His wife, Katherine Brown, died in possession of these premises, some seven months after the death of her husband. The plaintiff did not introduce any order of the court of ordinary authorizing him to sell this land, and he did not show that it was necessary for him to recover the same for the payment of debts or the distribution among the heirs of Katherine Brown. Hamilton Brown died testate, and his will dated June 7, 1901, was probated and admitted to record on February 5, 1902. The eighth item of his will was as follows:
"I give and bequeath to my son, Frank, the house and lot on which I now reside, after the...
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