English v. Register

• Decision Date: 30 September 1849
• Docket Number: No. 64.,64.
• Parties: Haywood English, plaintiff in error. vs. Doe ex dem. Thomas Register and others, defendants.
• Court: Georgia Supreme Court

7 Ga. 387

Haywood English, plaintiff in error. vs. Doe ex dem. Thomas Register and others, defendants.

No. 64.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1849.

Ejectment, in Habersham Superior Court. Tried before Judge Dougherty, April Term, 1849.

An action of ejectment was commenced upon the several demises of Thomas Register and James R. Wyly, against Haywood English, who pleaded the general issue and the Statute of Limitations. Upon the trial on the appeal, after the cause was submitted to the Jury, the counsel for plaintiff moved to amend the declaration by extending the demise to twenty years. The Court allowed the amendment—an order having been taken at the previous term to make this amendment—and defendant excepted.

There was in evidence a grant from the State to Register, dated 1830, a deed from Register to one Pynes, a deed from Pynes to Tatum, and a deed from Tatum to James R. Wyly, dated in 1841. The defendant below, English, was in possession for more than twenty years before the commencement of the suit. It was proven by several witnesses, that English, at various times during his possession, admitted that he had no title, and employed one of the witnesses to purchase the outstanding title of Register. It was also in evidence, that Thomas Ragister had never been heard of in Habersham county, and the agent, man-aging the cause for plaintiff, swore that he had never seen or communicated with him.

The Court charged the Jury, that if they found the deeds in evidence were made pending the adverse possession of English, they were void; still a recovery could be had under the demise of Register; to which charge defendant excepted.

The Court farther charged, that twenty years' possession would raise a presumption of a grant to the tenant, but that such presumption might he rebutted by parol evidence, that the tenant disclaimed title to the land, and by the fact that a grant issued from the State within that time to another person. To which charge defendant excepted.

The Court farther charged, that if the defendant was in possession under a claim of right, and not holding under the plaintiff, such possession was adverse; but if he was in possession without any claim of right, and disclaimed any interest or claim to the land, such possession would not protect him under the Statute.

To this charge defendant excepted.

The verdict being for plaintiff, the defendant moved a new trial, on the ground the verdict was contrary to the law and evidence. The Court overruled the motion, and defendant excepted.

On these several exceptions error was assigned. H. Cobb and Peeples, for plaintiff in error.

J. W. H. Underwood and Overby, for defendant.

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

The amendment of the plaintiff's declaration extending the demise, was properly allowed by the Court below, under the 54th Common Law rule of practice.

There was no error in the charge of the Court to the Jury, as to the right of recovery under the demise of Thos. Register. It does not appear from the record, that he objected to the use of his name, or that it was used without his consent. In Fain vs. Gathright, (5 Ga. Rep. 6,) we held that the name of a party might be used as the lessor of the plaintiff in an action of ejectment, even against his consent, provided he was indemnified againstcosts, when such use of his name was necessary and important to the assertion and successful prosecution of the rights of another party.

The Court below did not err in charging the Jury; that the presumption of a grain, raised by parol evidence, might be rebutted by the same species of evidence. Griffith vs. Mathews, 5 Term Rep. 296.

We are unanimously of the opinion, that there was no error in the charge of the Court, as against the plaintiff in error, upon the facts exhibited by the record in this case, with regard to the Statute of Limitations. English, the tenant in possession, disclaimed having any title to the premises, and the presumption of law is, that he held the possession in subordination to the title of the true owner. Although we are unanimous as to the judgment rendered upon the facts of this case, I do not concur entirely with my brethren in their views of the Statute of Limitations: and what I am now about to say, is to be regarded as my individual opinion, and not the opinion of the Court.

The true doctrine with regard to the Statute of Limitations, when relied on to defeat a perfect paper title, I understand to be, both upon principle and authority, founded upon adverse possession, and that possession never will be considered as adverse to the title of the true owner, unless taken and held under color of title or claim of rigid. The Statute of Limitations never commences running against the true owner of the land, in favor of the party in possession, until such possession becomes adverse; and the evidence of such adverse possession can only be established by such acts, as in law, amount to a disseisin or ouster of him who has the legal title. The mere naked possession, for seven years, without color of title or claim of right to the land, will not constitute adverse possession, so as to bar the right of action of the true owner; for the reason, such mere naked possession is not hostile to, nor an invasion of the legal seisin and possession of him who has the perfect paper title, and until there is a hostile possession, an invasion of the rights of the true owner by the party in possession, the Statute does not commence to run.

The law deems every person to be in the legal seisin and possession of the land to which he has a perfect and complete title; and this seisin and possession is coextensive with his right, and continues until he is ousted thereof, by an actual possession in an-other, under a claim of right. Arrgell on Limitations, 400. Proprietors of the Kennebeck Purchase vs. Springen, 4 Mass. Rep. 416. United States vs. Arodando et al, 6 Peters\' Rep. 743. "The Statute of Limitations (says Chief Justice Marshall, in Mclver vs. Ragan, 2 Wheat. Rep. 25,) is intended not for the punishment of those who neglect to assert their rights by sail, but for the protection of those who have remained in possession, under color of a title believed to be good, " The mere possession of land, without any claim of right, gives no title, however long it may continue,, and the true owner may lawfully enter upon such an occupier, at any distance of time, because he does no wrong to the occupant who claims no right. Per Jones, Chancellor, La Frambois vs. Jackson, 8 Cowen\'s Rep. 603. A possession for ever so long a time, stripped of the circumstance that it is unaccompanied with the claim of the entire title, will not amount to an adverse possession, barring those who have the real and legitimate title. Per Spencer, Justice, Smith vs. Burtis, 9 John. Rep. 180. I have said that when a party is in possession of land, without color of title or claim of right, the presumption of the law is,...