Grimes v. Ragland

• Citation: 28 Ga. 123
• Parties: GRIMES. vs. RAGLAND.
• Decision Date: 31 March 1859
• Court: Georgia Supreme Court

28 Ga. 123

GRIMES. vs. RAGLAND.

Supreme Court of the State of Georgia

MARCH TERM, 1859.

Ejectment and motion for a new trial, in Paulding Superior court. Decided by Judge Hammond, August Term, 1858.

This was an action in the ejectment form by William R. Grimes, Benjamin H. Swearengin and Wilson Lumpkin, lessors, against W. Ragland, tenant in possession for lot of land No. 330, in the second district and third section of said county.

Plaintiff proved title to the lot in controversy, 330, founded upon a grant from the State to Grimes, then a deed from Grimes to Swearengin, and a deed from Swearergin to Lumpkin. Proved that defendant was in possession, and closed.

Defendant offered and read in evidence a deed from Elijah Ragsdale, to lots No. 330 and 331, dated 20th January, 1842, and proved that he went into possession under the deed soon after its date—that the lots were adjoining—that is, that his residence and improvements were on lot number 331, but there were no improvements on lot 330, until about 1852 or 1853, and no acts of ownership and possession except cutting timber, &c. The question in the case was, whether a possession of, and residence on, one lot of land, under a deed of conveyance of said lot with another, forming an entire settlement or farm, but without actual occupation or improve-merit of that other, will constitute adverse possession as to the lot not occupied or in cultivation.

The court charged the jury that, " if defendant purchased and received a deed conveying the lot in dispute, together with some other lot, and he went into the actual possession of the other lot, and exercised acts of ownership over both lots as one tract or parcel, he was in possession of the whole, though ho had not cleared or made any improvements on the lot in dispute, they being adjoining lots; and this possession would bo protected to the extent of the boundary called for by the deed under which he held and claimed."

To which charge plaintiff excepted. The jury found for the defendant, and plaintiff moved for a new trial, which was refused and he excepted, assigning as error said refusal.

Chisolm & Waddell, and Fielder & Broyles, for plaintiff in error.

Irvin & Lester, contra.

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

This was an action of ejectment in the county of Paulding for the recovery of a tract of land known as No. 330, in the second district of the third section of originally, Cherokee county. The jury rendered a verdict for the defendant, whereupon the plaintiff moved for a new trial on three grounds. The first ground was, that one of the special jury who tried the cause was related to the defendant, Sanders W Ragsdale, within the levitical degress of consanguinity, and was, therefore, not a competent juror to try the cause, which fact was unknown to the plaintiff until said cause had been submitted to the jury, and testimony introduced. This objection comes too late after a trial and verdict. Such objections to jurors may beeasily ascertained by the use of a little diligence. The jurors themselves may be enquired of, if there are kinsmen of either party on the panel.

The next ground is the important one in the motion, and the point is easily extracted from the request of the court to charge the jury, and the charge of the court as given to the jury, viz: whether a residence upon, and the actual possession and occupation of, one of two tracts of land conveyed to the defendant in the same deed, is such a constructive possession of the other tract, of which there is no actual occupation, as if...