Clements v. Wheeler
| Decision Date | 31 August 1878 |
| Citation | 62 Ga. 54 |
| Parties | CLEMENTS, administrator, et al. v. WHEELER. |
| Court | Georgia Supreme Court |
Ejectment. Grants. Deeds. Evidence. Prescription New trial. Before Judge Underwood. Walker Superior Court. February Term, 1878.
On August 7, 1876, John Doe, on the demise of Clements, as administrator of Christopher Day, of Silva, of Solomons, of Cotting, executrix of David G. Cotting, and of Bryant, brought ejectment against Richard Roe, and Wheeler, tenant in possession, for lot of land 263, in 8th district and 4th section of Walker county. The defendant pleaded the general issue and title by prescription.
The evidence for the plaintiffs, so far as material, was as follows:
1. Grant covering lot 263, 8th district and 4th section of Cherokee county, to Christopher Day, dated July 22, 1839.
2. Deed from Clements, administrator of Day, to Silva, covering same lot, dated November 5, 1872, recorded October 20, 1873.
3. Deed from Silva to Solomons, covering one undivided half interest in said lot, describing it as originally in Cherokee but now Walker county, dated June 24, 1873.
4. Deed from Solomons to Cotting, covering such half interest, dated October 15, 1873.
5. Appointment of Frances G. Cotting as executrix of her deceased husband, David G. Cotting, November 5, 1874.
6. Deed from Silva to Jane Wallace Bryant, covering half interest in said lot, dated in July, 1875.
7. R. S. Nealey, who testified, in substance, as follows: Defendant, Wheeler, went into possession of the lot in controversy about four years ago; witness had possession for one *year under a man by the name of Lawrence; he was followed by Scoggins, a son-in-law of defendant, who held under defendant. Witness built a cabin on the place and cleared out the wild growth, which required considerable work. When Wheeler took possession through his son-in law. some four years since, he cleared some fifteen acres, and added to the house by building a shed. The lot was vacant and uncultivated until witness took it in hand. He held under Lawrence, and not under Minis.
8. Thomas P. Harris, who testified substantially as the preceding witness.
9. Declaration is complaint for same lot in favor of Silva and David G. Cotting, against John B. Wheeler, filed in office July 15, 1874, and dismissed July 29, 1876.
The defendant introduced, in substance, the following testimony:
1. The same grant as was offered by the plaintiffs, which had been produced by him under notice.
2. Deed from Christopher P. Day to Sarah Beggs, covering said lot, dated May 27, 1839; recorded August 31, 1840.
3. Deed from Sarah Beggs to Philip Minis, dated April 6, 1840.
4. Deed from the heirs-at-law of Philip Minis to Calvin C. and John B. Wheeler, dated November 30, 1872.
5. Deed from Calvin C. to John B. Wheeler, covering undivided half interest, dated March 1, 1873.
6. William Harris, who testified, in brief, as follows: More than ten year before the war, a man by the name of King went into possession of the lot. While in possession, King said that he went in under one Edwards who stated that he was the agent of Dr. Minis. He remained in possession some two or three years, built a cabin and cleared some land. He was followed by one Spangler. Do not know how long he remained in possession, nor who he held under. Spangler was followed by Edwards, who said, while in possession, that he held under Dr. Minis. Think he remained *in possession one or two years. The possession of King, Spangler and Ed-wards did not cover more than six years. The place became vacant, and so remained until Nealey took possession after the war. It was unoccupied for four or five years before the war; the fences and houses were taken off. Edwards died about the commencement of the war.
7. William Wheeler testified, in brief, as follows: As to possession of King, substantially as preceding witness. King was succeeded by Spangler, who said, while in possession, that he held under Dr. Minis. He was followed by one Bird, who went in under Spangler to fill out the time which the latter claimed to be entitled to under Minis; he remained one year. Bird was followed by Edwards, who said, while in possession, that he held under Minis. He cultivated the place two or three years, and then moved off the fence-rails and cabins, stating that Minis had instructed him to do this to keep off intruders. A Mrs. Mitchell occupied a house on a different part of the land while Edwards was in possession, but do not know under whom she held.
The remainder of the testimony of this witness was substantially as that of the preceding witness and Nealey.
The jury found for the defendant. The plaintiffs moved for a new trial upon the following; among other grounds:
1. Because the court erred in charging the jury, after stating that a grant issues to a person and to a name, that "if Christopher Day and Christopher p. Day, are one and the same person, the grant would apply to that person, " there being no evidence to authorize such charge.
2. Because the court erred in charging that "if the two names belong to one person, then the oldest deed from Day...
To continue reading
Request your trial