Error v. J. P

• Court: Georgia Supreme Court
• Writing for the Court: MONTGOMERY
• Citation: Error v. J. P, 44 Ga. 645 (Ga. 1872)
• Decision Date: 31 January 1872
• Parties: J. K. EVANS et al. plaintiffs in error. v. J. P. and W. C. BAIRD, defendants in error.

44 Ga. 645

J. K. EVANS et al. plaintiffs in error. v. J. P. and W. C. BAIRD, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1872.)

Ejectment. Presumption. Infancy. Before Judge Harrell. Terrell Superior Court. May Term, 1871.

This was ejectment by Doe upon the several demises of Joshua K. Evans, Alexander Holmes and Thomas Holmes. It was begun in December, 1869. Plaintiff read in evidence a grant from the State to Alexander Holmes, traced title from Holmes to Henrietta V. Hart, read in evidence a deed from her to Eugene N. Hart, made the 9th of March, 1858, and a deed from him to Evans, dated the 7th of August, 1866. With evidence as to mesne profits, etc., plaintiff closed.

Defendants relied upon a prescriptive right (seven years' possession) to the premises. They read in evidence a sheriff's deed made in November, i860, without the fi. fa. under which the sale was made. This was objected to, but the Court ruled that the fi. fa. was not necessary where defendants were only showing color of title. It was shown that defendant's possession, under said sheriff's deed, had been continuous since the date of said sheriff's deed.

After plaintiff's counsel had opened the argument to the jury, he stated to the Court that he had just learned that Eugene N. Hart was a minor until 1865, and proposed to amend by laying a demise in Hart's name, and to prove his infancy as aforesaid. The Judgesaid that such amendment would do no good, as he had shown title out of Hart and refused *then to allow said proof of infancy. The amendment was not made.

In argument, plaintiff\'s counsel requested the Court to charge the jury that defendant\'s prescription was bad unless they held possession bona fide. He did not so charge. When his charge was ended, his attention was called to the failure to charge as requested, to which he replied that the request was not in writing, and did not so charge. He charged that the fi. fa. was not necessary evidence as a basis of color of title. The jury found for defendant. A motion for new trial was made upon the grounds that the Court had erred in the several rulings, charge and refusal to charge. He refused a new trial, and that is assigned as error.

Vason & Davis, by C. B. Wooten, for plaintiffs in error.

F. M. Harper, by Clark & Goss, for defendants.

MONTGOMERY, Judge.

The plaintiffs brought ejectment against the defendants and showed complete title in himself from the State. One of the links in the chain...