Harrell v. Culpepper

• Decision Date: 31 January 1873
• Citation: 47 Ga. 635
• Parties: LOVETT L. HARRELL, executor, plaintiff in error. v. NANCY A. R. CULPEPPER, defendant in error*.
• Court: Georgia Supreme Court

47 Ga. 635

LOVETT L. HARRELL, executor, plaintiff in error. v. NANCY A. R. CULPEPPER, defendant in error*.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1873.)

(Montgomery, Judge, was providentially prevented from presiding in this case.) Complaint for land. Declarations. Deed. Evidence. Before Judge Clark. Webster Superior Court. September Term, 1872.

Lovett L. Harrell, as executor of Levi Harrell, deceased, brought complaint against Nancy A. R. Culpepper, for a tract of land in the county of Webster, to-wit: lot number one hundred and forty-eight, in the eighteenth district, containing two hundred and two and one-half acres, and for the mesne profits of the same. The writ was filed in office on February 10th, 1871. The record does not disclose the defendant's plea.

Upon the trial the plaintiff introduced the following evidence, to-wit:

1st. Grant from the State to Moses Right, dated September 30th, 1828. 2d. Deed from Moses Right to Levi Harrell, dated in 1829.

3d. Letters testamentary to plaintiff upon the estate of Levi Harrell, deceased.

The defendant introduced testimony as follows:

1st. Deed from John Gibbs to J. F. Culpepper, dated June 3d, 1847. 2d. Deed from Moses Right to Thomas, dated October 5th, 1846

*3d. Deed from Thomas to James Murv, dated December 24th, 1854.

4th. Deed from James Mury to B. O. Hattox, dated December 25th, 1854.

5th. Deed from B. O. Hattox to Kemp, dated December 30th, 1854.

6th. Deed from Kemp to Joseph F. Culpepper, dated July 3d, 1860.

Mark Kemp Culpepper, sworn: Knew Joseph F. Culpepper in his lifetime; the defendant was his wife; has known the premises in dispute since 1843; knew when Culpepper's ownership of the lot commenced; thinks it was in the fall of 1847. He commenced clearing the lot in 1847; he said that he owned it; he lived on an adjoining lot; he built his house on it in three or four years; so far as witness knows, he exercised ownership oh the place as long as he lived. He raised corn and cotton on it, built houses on it, and lived there during his life. He died during the war. There was another claim against the lot which was compromised. He lived on the lot from the fall of 1851 to his death. The defendant has been in possession ever since the death of her husband. She and her husband have been in possession since 1847. The defendant has seven or eight children, all of whom are minors except two. Witness does not know that she has ever administered upon her husband's estate.

L. B. Causey, sworn in rebuttal for the plaintiff: Culpepper was in possession the first time witness ever saw the settlement, in 1853 or 1854; he farmed on it as long as he lived and treated it as his own. The possession was continuous from the time witness knew it; the defendant has been in possession ever since her husband's death.

The Court charged the jury as follows: "Plaintiff claims by plat and grant from the State to Moses Right, issued in 1828, and deed from Moses Right in 1829 to Levi Harrell, the death of Harrel, and letters testamentary to his executor. This title is sufficient to entitle theplaintiff to a verdict unless the defendant shows a better title. *"The defendant says that she went into possession in 1847, under a deed from Gibbs to her husband; that her husband cleared land on the lot in 1847; that he built a house in three or fouryears thereafter on the lot and moved on it, and cleared and cultivated it until his death, and that she, as his widow, has remained in possession up to date. Suit was brought in 1870, (1871.) If the deceased husband, Culpepper, went into possession in 1847, under a deed from Gibbs to himself, in good faith, believing he had a good title, and held, claimed, occupied and cultivated the land during his life, and his widow has remained on the land ever since, then you should find for the defendant. The memorandum on the back of the deed of transfer of title to Kemp is not evidence of the transfer of the title without proof of the execution and delivery. You cannot consider it without some other proof of its execution and delivery. The widow can properly defend this suit, and if the title vested in her husband during his life, the law...