Carstarphen v. Holt
| Decision Date | 05 October 1895 |
| Citation | 23 S.E. 904,96 Ga. 703 |
| Parties | CARSTARPHEN v. HOLT. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. While a declaration and a verdict thereon in the plaintiff's favor, upon which no judgment was ever entered, are not admissible to show an adjudication of the matters set forth in such declaration, or as a conclusive estoppel against the defendant therein as to such matters they are competent for the purpose of showing, as between the parties and their privies in estate, the independent fact that such a verdict was rendered in the case in which that declaration was filed, and are admissible, if otherwise relevant, to show that the parties were at that time at issue upon the particular facts therein pleaded, and as a circumstance, in connection with other and independent evidence, tending to show acquiescence in the verdict and its consequences, to be weighed by the jury in determining whether such acquiescence was attributable to the verdict itself, or to other and distinct causes.
2. The declaration and verdict offered in the present case were, in view of all the facts in evidence, properly admitted; but the charge of the court in this connection was erroneous, in that it gave the jury too great latitude in dealing with this evidence, and allowed them to attribute to the verdict a degree of weight not authorized by law.
3. Where a deed conveys several distinct tracts of land lying contiguous to each other, but not covered by one general description which would embrace them all, and the grantee enters into the possession of one of such lots only prescription will not run in his favor as to the other of such lots until after his deed has been recorded; but as to that lot into the possession of which he actually enters prescription will run, whether such deed be recorded or not.
4. Where, under such circumstances, the defendant undertakes, by prescription, to establish the original boundary under her deed, which conveys to her several separate tracts, including the one upon which she seeks to prescribe, she being in the actual possession of the latter, it is error for the court to charge generally, in effect, that, where a person is seeking to prescribe claims under a deed, prescription will not run in her favor until after her deed has been recorded. As to either of the several tracts of which she is in actual possession of a portion, prescription will run, whether the deed be recorded or otherwise.
5. Where, upon the trial of an action of ejectment, it appears that the plaintiff and defendant are each, respectively, in the actual possession, under color of title, of portions of tracts of land so situated with respect to the disputed premises as that the latter are claimed by each of such respective proprietors to be embraced within the boundaries of the deeds under which they respectively hold, the question becomes one of boundary, and prescription does not run in favor of either against the other as to such property so constructively in the possession of both; and in such a case, the question of prescription is only in the first instance involved in so far as it may be necessary to establish the plaintiff's title, in the event that the question of boundary be determined in favor of his contention.
6. Where coterminous proprietors settle between themselves a question of disputed boundary, either by acquiescence or otherwise, and afterwards one of them conveys his premises so as to include the premises conceded to the other in the adjustment of the question of boundary, the grantee of the latter cannot prescribe upon such premises, as against his coterminous proprietor, unless he enter in good faith, without notice of such settlement of such disputed boundary, and hold for the requisite period adverse possession of the same.
7. Where the question involved is one of disputed boundary, and either of the several conveyances under which the respective parties claim is so indefinite and equivocal in matter of description as not to designate the limits of the particular tract sought to be conveyed, such conveyance may, as against the grantor and his privies in estate, be made certain by the election of the grantee; and where both parties claim from a common source, such infirmities in their several conveyances may be cured, either by the establishment of a boundary by the common grantor, coupled with the acceptance of such common boundary by the several grantees, or by the election of the latter to locate their several tracts upon the land of the grantor with reference to a common boundary mutually recognized among themselves.
8. The question of prescription made by the defendant having been concluded against her by the instruction of the court, as stated in the fifth headnote, upon the effect of her failure to record her deed, and the evidence being closely conflicting upon the questions of fact involved in the contentions of the parties touching the disputed boundaries, a new trial should have been awarded.
Error from superior court, Bibb county; J. L. Hardeman. Judge.
Ejectment by W. R. Holt against Nancy J. Carstarphen. There was a judgment for plaintiff, and defendant brings error. Reversed.
Hardeman, Davis & Turner, for plaintiff in error.
C. C. Kibbee, H. V. Washington, and S. A. Crump, for defendant in error.
The question made in the present case arose upon the following facts: The plaintiff brought an action of ejectment, in the statutory form, against the defendant for 26.76 acres of land in lot 334, in the Thirteenth district of Bibb county alleged to have been bounded on the north by lands of the estate of Asher Ayers, west by lands of F. S. Jones and Nancy Carstarphen, south by lands of Asher Ayers' estate known as "Harris Place," and on the east by lands of the American Investment Company,--being part of 50 acres of land lying in the northeast corner of said lot 334; being a rectangle in shape, the north and south lines of which are 550, and the east and west lines are 2,130, feet; and being the same lands recently in litigation between the American Investment & Loan Company and Nancy and T. J. Carstarphen. It appeared from the abstract of title that the plaintiff claimed under a warranty deed from William A. Johnson to Robert S. Holt, dated December 31, 1852, and it was admitted upon the trial of the case that the plaintiff, as an heir at law of Robert S. Holt, received the land, by the proper paper title, upon the distribution of the latter's estate among his several heirs. The plaintiff also claimed a title by prescription (1) under color of title by 7 years' possession; and (2) by virtue of 20 years' actual, adverse possession, independent of his color of title. The defendant pleaded the general issue, and, in like manner with the plaintiff, set up title by prescription, both under color of title, and by actual adverse possession for 20 years. The deed under which the plaintiff's ancestor first claimed title to the premises in dispute described the premises conveyed to him by William A. Johnson to Robert S. Holt as being 50 acres on the northeast corner of lot 334. In none of the subsequent papers under which the plaintiff claims does there appear to have been any more definite or accurate description of the premises than as stated in the original deed above referred to,--certainly, none of date sufficiently remote from the date of the filing of the suit, or from the date of the trial, as would serve as a basis for prescription. It appears from the record that the defendant's title to the property originated in a deed, dated September 29, 1859, by which T. D. Ousley and S. P. Bailey, who derived their title from Newtagate Ousley, conveyed to Mrs. Sarah Townsend, in consideration of $4,000, several tracts of land as follows: Lot 308, containing 202 1/2 acres, 82 1/2 acres on northwest corner of lot 334, and 135 acres of lot 309, in Thirteenth district of Bibb county. This deed was recorded on January 9, 1869. The defendant showed, in regular succession, a chain of title from Mrs. Sarah Townsend to herself. The premises in dispute were claimed by the plaintiff to be a portion of the 50 acre tract of land in the northeast corner of lot 334, which was conveyed by William A. Johnson to the ancestor of the present plaintiff. The defendant claimed that the premises in dispute constituted a portion of the 82 1/2 acre tract, lying in the northwest corner of lot 334, which was conveyed by Ousley and Bailey to Mrs. Townsend under whom she claimed. The evidence shows that both the plaintiff and defendant for a great number of years, had been in the actual possession of a portion of the several tracts respectively claimed by them under their several conveyances, and which were embraced within the boundaries of lot 334. The contention of the plaintiff was that the true boundary between his 50 acre tract and the 82 1/2 acre tract of the defendant would include the disputed premises within his tract; and the contention of the defendant was that the true location of the original boundary between such tracts would result in including the disputed premises within her tract of 82 1/2 acres. The plaintiff, upon the trial of the case, among other things, offered in evidence an admitted copy of an original suit for trespass, filed in Bibb superior court on the 25th day of September, 1854, by Robert S. Holt, the ancestor of the present plaintiff, against Newtagate Ousley, under whom the defendant claims, upon the tract of land described as being "50 acres of land on the northeast corner of lot 334 in the Thirteenth district of said county," and, together with such admitted copy declaration, a copy verdict of the jury rendered in that case, finding in favor of the plaintiff. No judgment ever...
To continue reading
Request your trial