Ejector v. Dem

• Citation: 30 Ga. 873
• Parties: ROE, casual ejector, et al. v. DOE, ex dem., et al.
• Decision Date: 30 June 1860
• Court: Supreme Court of Georgia

30 Ga. 873

ROE, casual ejector, et al. v. DOE, ex dem., et al.

Supreme Court of the State of Georgia

JUNE TERM, 1860.

Ejectment, in Marion Superior Court. Tried before Judge Worrill, at March Term, 1860.

This was an action of ejectment brought by Doe, ex dem., William A. Pierce, against Roe, casual ejector, and Catherine Tidd, tenant in possession, for the recovery of lot of land number 259, situated in the fourth district of Marion county.

Upon the trial, plaintiff offered and read in evidence, a grant from the State of Georgia to William A. Pierce, his lessor, for the premises in controversy, proved defendant's possession and the locus, and closed.

Defendant then proved that Pierce, the plaintiffs' lessor, died about twenty years before the commencement of this suit, and that she, Catherine Tidd, had been in the peaceable, continued, and adverse possession of the premises in dispute, under color of title and claim of right for more than seven years prior to the bringing of suit.

Plaintiff then amended his declaration by striking out the demise from Pierce, and inserting a demise from Mahala Jane Garris, and proved that she was the heir at law of said Pierce.

The demise from Pierce was alleged in the declaration to have been made the first of January, 1854. The action was commenced the 7th of August, 1855.

Upon this state of the facts and pleadings, and after argument, the presiding Judge charged the jury, that if Pierce, the plaintiffs' lessor, were the drawer of the land, and Mahala Jane Garris was his heir at law, then plaintiff was entitled to recover on her demise, notwithstanding Pierce may have been dead more than twenty years before suit was commenced in his name. That, although Mahala Jane Garris had not asserted her right or brought her suit within seven years after the accrual of her right, yet if the action had been commenced in the name of another, before her right ascause of action was bound by the statute of limitations, she had the right to come in and be made a party to the suit at any time, and could recover, notwithstanding the statutory period had elapsed before she was made a party. To which charge counsel for defendant excepted.

The jury, under the charge, found for the plaintiff upon the demise-of Mahala Jane Garris, and counsel for defendant tendered their bill of exceptions, assigning said charge as error.

Hinton & Butt and Levi B. Smith, for plaintiff in error.

Blandford & Crawford, contra.

By the Court.—Stephens, J., delivering the opinion.

Mr. Justice Blackstone, in 3 Book Com, side page 205, says it was resolved by all the Judges in 32 Get. 2, that the writ of ejectment and its nominal parties are "judicially to be considered as the fictitious form of an action, really...