Ellis v. Smith

• Decision Date: 20 December 1900
• Citation: 112 Ga. 480,37 S.E. 739
• Parties: ELLIS et al. v. SMITH et al.
• Court: Georgia Supreme Court

112 Ga. 480

37 S.E. 739

ELLIS et al.

v.SMITH et al.

Supreme Court of Georgia.

Dec. 20, 1900.

EJECTMENT—TRESPASS—INSTRUCTIONS— CHAMPERTOUS CONTRACT.

1. When, in a proceeding instituted to recover land and damages for a trespass thereon, each of the parties stands upon the proposition that he has a legal title to the land, it is error for the trial judge to charge the jury: "If you should find that there has been no claim made for a great lapse of time since the death of the grantee, and a great number of years has elapsed since the death of the grantee before bringing suit, the law would presume that the property of the deceased to which plaintiffs claim title had been disposed of, or that it had been abandoned; * * * and, if you believe that the suit is a stale one, then you might find for the defendant."

2. If it appears that a case which is being tried was instituted and is being carried on under a champertous contract between the plaintiff and his attorney as to the fees of the latter for the institution and prosecution of the case, this does not authorize a charge that the plaintiff is not entitled to recover, (a) The contract which is obnoxious to public policy, and which cannot be enforced under the statute, is that which is affected with champerty; but the prohibition does not apply to a pending cause of action, which by a champertous contract the attorney agreed to prosecute.

(Syllabus by the Court.)

Error from superior court, Irwin county; C. C. Smith, Judge.

Action by W. R. Ellis and others against Smith & Bussey. Judgment for defendants, and plaintiffs bring error. Reversed.

J. W. Haygood, Hamilton McWhorter, and Jas.K. Hines, for plaintiffs In error.

LITTLE, J. We do not find it necessary to consider in detail any of the 12 grounds contained in the motion for a new trial, except the 2 hereafter specifically considered. It is sufficient as to the others to say that there was certainly no error on the part of the presiding judge In refusing to compel the production of the plat and grant when, under the plain letter of the law, no oath or statement was made that the plaintiff had reason to believe that the paper was In the posses sion or control of the defendant, and that it was material to the issue. Under other of these grounds, no error is shown, in the light of the qualifications made to them by the judge. In still others, which complained that the court erred in sustaining objections to certain questions which were propounded to a witness, the motion does not show what answers the witness would have made to such questions. In the absence of such statements the grounds cannot be passed on.

1. It is contended by the plaintiff in error that the court erred in charging the jury, if they "should find that there has been no claim made for a great lapse of time since the death of the grantee, and a great number of years has elapsed since the death of the grantee before bringing the suit, that the law would presume that the property of the deceased to which plaintiff claims title has been disposed of, or that it had been abandoned. Look to the evidence on this question, and see what the truth is; and, if you believe that the suit is a stale one, then you might find for the defendant." The action instituted in this case was an equitable petition to recover possession of a certain tract of land, and to recover damages for certain trespasses which it was alleged that the defendants had committed thereon; and, as ancillary thereto, there was a prayer for injunction to restrain the defendants from committing further trespasses on the land. We are of the opinion that the charge in reference to a stale demand was error. The right of the plaintiffs to recover depended upon title. This, under our law, may be required in different ways. The plaintiffs rested theirs upon a grant from the state to an alleged ancestor, from whom they claimed title descended to them. The answer shows that the defendants also claimed title to the land, which was rested on possession for seven years under a bona fide color of title. So that each of the parties claimed to have title. There is no superiority in a title derived from a grant to that acquired by possession under color of title for seven years, although the latter is derived by force of a statute. We have in this state no limitation upon the right of the owner to institute an action to recover land to which he has title. As was said by Judge McCay in the case of Roe v. Doe, 46 Ga. 120, we attain the same end by our law of prescription, which gives the person in possession for seven years a good title. Now, whether the plaintiff was entitled to recover the land and damages for the trespass, and to have an injunction...