Ellis v. Dasher

• Court: Georgia Supreme Court
• Writing for the Court: FISH, J.
• Citation: Ellis v. Dasher, 101 Ga. 5, 29 S.E. 268 (Ga. 1897)
• Decision Date: 22 March 1897
• Parties: ELLIS v. DASHER.

29 S.E. 268

101 Ga. 5

ELLIS v. DASHER.

Supreme Court of Georgia

March 22, 1897

Syllabus by the Court.

Prior possession of land, under a claim of ownership, is prima facie evidence of title in the occupant, upon which he may recover in ejectment, unless the defendant shows a better adverse title, by possession or otherwise. Such claim of ownership, if bona fide, may be supported by proof of a parol gift from another and entry thereunder, even where such entry was not made until after the donor's death, and although it does not affirmatively appear that the donor had ever been in possession of, or had title to, the property. Such a gift would not pass title to the donee; but it could nevertheless, be made the basis of an honest possession by the latter, accompanied by a bona fide claim of right, which could in time ripen into a perfect title.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Ejectment by Thomas B. Ellis against Mrs. A. L. Dasher. Judgment of nonsuit. Plaintiff brings error. Reversed.

Ryals & Stone, for plaintiff in error.

Hardeman Davis & Turner, and Arthur Dasher, for defendant in error.

FISH J.

This was an action of ejectment for the recovery of a certain lot of land in Bibb county, and, by amendment to the original petition, a demise was laid in Thomas B. Ellis. The suit was filed March 28, 1893. The defendant pleaded the general issue. At the trial the plaintiff's attorneys stated to the court that they relied for a recovery upon the prior possession of Thomas B. Ellis, who was the real plaintiff in the case. At the close of the plaintiff's evidence, the defendant's counsel moved for a nonsuit, which was granted by the court, to which ruling the plaintiff excepted and he now assigns the same as error. J. E. Ellis was the only witness introduced in the case. From that portion of his testimony which is material to the decision of the case, it appears that he is the father of the plaintiff, who was 26 years old in February preceding the trial of the case; that Thomas Bagby, the plaintiff's grandfather, made a parol gift of the land to the plaintiff in 1876, and told the witness to go and take possession of it; that the lot was then vacant, and remained vacant until January, 1885, when the witness began building a storehouse on it, which he completed in February of that year; that, at the time that he built a house on the lot, he also put a fence around it; that on February 9, 1885, he rented it to John Walker, and was paid one month's rental for the same by Lizzie Walker, the wife of John. The witness also testified that John and Lizzie Walker were not in possession of the premises before; that, prior to his renting the place to John Walker, Lizzie and John had tried several times to rent the place from him, and John had tried to buy it, but he told him that it belonged to his (the witness') son, and could not be sold until he became of age; that in April, 1885, when the witness went to collect the rent, Lizzie Walker claimed that the sheriff of Bibb county had made her a deed to the premises, and produced a deed from the sheriff, which, by its terms, included the land in dispute, but she admitted that the sheriff had made a mistake in conveying to her the land in question; but she thereafter refused to pay rent for the same or to surrender possession thereof; that the witness carried Mr. Westcott, the sheriff, out to see her, and Westcott said to her that he had made a mistake in making the deed, and that he would take the deed and rectify it, but she refused to let the sheriff correct the mistake in the deed, and said to him: "You have deeded me Mr. Ellis' lot, and I expect to hold you to it. You made the mistake, and you must pay for it." It also appeared from the evidence that Thomas Bagby, the grandfather of the plaintiff, died in 1884. While the witness testified that he went and took possession of the lot when Thomas Bagby gave it to the plaintiff, all he really did during the lifetime of Bagby, who died in 1884, was to go out, walk over the lot, and get certain boundaries.

The plaintiff neither showed title in himself, nor in his alleged donor, nor any possession in the latter. He claimed to have had prior possession of the premises in dispute, and relied for a recovery solely on that. "A plaintiff in ejectment may recover the premises in dispute upon his prior possession alone, against one who subsequently acquires possession of the land by mere entry, and without any lawful right whatever." Civ. Code, § 5008. As Chief Justice Bleckley says, in Bagley v. Kennedy, 85 Ga. 706, 11 S.E 1091: "This expression of the law is in accordance with the general authorities on the question." See in that case the numerous citations on this point, made by the learned chief justice, from text-books and the decisions of the courts of last resort in other states of the Union. See, also, Wolfe v. Baxter, 86 Ga. 705, 13 S.E. 18; Bleckley v. White, 98 Ga. 597, 25 S.E. 592, and Sparks v. Conrad, 99 Ga. 643, 27 S.E. 764. If the plaintiff in this case showed prior possession in himself, under a bona fide claim of ownership, he was entitled to recover, unless the defendant showed a better adverse title, by possession or otherwise. Did the plaintiff make out such a case? The evidence establishes the fact that J. E. Ellis, the father of the plaintiff, took possession of the land sued for, and put valuable improvements thereon prior to the possession of the defendant, or to the possession claimed for Lizzie Walker, under whom the defendant apparently holds. It further appears from the evidence that the older Ellis, when he took possession of, and made these improvements on, the premises in dispute, did not do so for himself, but was acting for and in behalf of his son, the plaintiff. At the time that the grandfather of the plaintiff made a parol gift of the land to him, the plaintiff being an infant of tender years, and incapable, both in law and in fact, of acting for himself, his father had a right to accept the gift for him. Civ. Code, § 3565. For the parent to accept for his infant...