Harriss v. Howard

• Decision Date: 17 August 1906
• Citation: 55 S.E. 59,126 Ga. 325
• Parties: HARRISS et al. v. HOWARD.
• Court: Georgia Supreme Court

55 S.E. 59

126 Ga. 325

HARRISS et al. v. HOWARD.

Supreme Court of Georgia

August 17, 1906

Syllabus by the Court.

Constructive possession of lands is where a person having paper title to a tract of land is in actual possession of only a part thereof.In such case the law construes the possession to extend to the boundary of the tract.Hence adjacent owners may be in constructive possession of the same land, being included in the boundaries of each tract.In such cases no prescription can arise in favor of either, but the rights of the parties will be determined according to the superiority of the one title or the other aside from such prescription.

A devise of land under a will duly recorded may give color of title.

A devise in a will duly probated and recorded, whereby a testator left to his two sons "all of my lands," contained a sufficient description to operate as color of title to land in the county of his residence to which he had recorded deeds, and which formed a part of a plantation known by his name, and of which he died in possession.

There can be no adverse possession against a co-tenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession.

Where one of two co-tenants, each of whom owned a half interest in certain land, gave a mortgage to a third person, describing the entire interest in the land, and such mortgage was foreclosed, and the land sold at sheriff's sale, after which the sheriff took the purchaser to the land, which was vacant, and, merely looking at it or pointing to it, informed the purchaser that he delivered it to him, this alone would not constitute such an ouster as would put the co-tenant on notice and furnish a starting point from which prescription would begin to run against him.

There being some conflict in the evidence as to whether actual possession was taken by the purchaser, or to what extent, or for how long held, and as to the nature and character of possession claimed by the respective parties, it was error for the court to direct a verdict in favor of the defendant.

Error from Superior Court, Early County; H. C. Sheffield, Judge.

Action by T. B. Harriss and A. D. Harriss against S. T. Howard.Judgment for defendant, and plaintiffs bring error.Reversed.

Where the facts bearing on the issue are in dispute, and the evidence offers room for a reasonable difference of opinion the issue is for the jury; but, where the evidence permits but one reasonable conclusion, the question should be determined by the court as one of law.

On March 12, 1903, T. B. Harriss and A. D. Harriss brought ejectment against S. T. Howard for lot of land No. 143 in Early county.The evidence showed that Joshua Harriss died in possession of the land, and that what was known as the Joshua Harriss plantation comprised lots Nos. 101, 103, 137, 139 140, 142, 143, 178, 182, 183, 218, 219 in Early county.Recorded deeds to some of the lots (Nos. 142, 143, 139, and 140) were introduced in evidence.The lots immediately connected with this controversy are lot No. 143(the lot involved in the suit), the south half of lot No.

178 which adjoins it on the west, No. 142, which adjoins it on the south, No. 139, which is east of No. 142, andNo. 140 which is south of No. 139.Joshua Harriss made a will which was duly recorded on September 2, 1873.The seventh item of it was as follows: "I give and bequeath to my sons, H. J. Harriss and James Harriss, *** all of my lands and appurtenances thereto belonging."On November 8, 1902, H. J. Harriss made a deed to T. B. Harriss and A. D. Harriss, which was recorded.They claimed that they were entitled to an undivided half interest in land lot No. 143, under the will of Joshua Harriss and this conveyance.There was also some evidence as to the purchase of the interest of the estate of James Harriss after his death by one of the plaintiffs; but this need not be set out, as the substantial controversy is as to an undivided interest.The defendant claimed under a foreclosure and sale under a mortgage given by James Harriss, which included not merely a half interest in lot 143, but all of it, and the south half of 178.He also set up prescription under the sheriff's deed.

On December 31, 1877, James Harriss, who presumably was the same person as J. M. Harriss, executed to J. J. Bird a mortgage duly recorded and covering land lot No. 143 and the south half of lot No. 178.It was regularly foreclosed, and the land was sold by the sheriff; his deed being dated June 5, 1883, and duly recorded.The defendant testified that the sheriff put him in possession, and that he had since been so; that there were then no houses on the land, and there was no cultivation of it; that the sheriff rode out to the land with him and put him in possession by showing it to him and turning it over to him.On the subject of occupancy, he further testified: There were no houses or cultivation or other occupation of the land until about 1892, when he built a house on the south half of lot No. 178, and his tenant moved into it and cultivated some patches on that lot; but there was no actual possession of lot No. 143.In 1895 and 1896 another person became tenant and had a patch of about 20 acres on the eastern portion of that lot No. 143 and a small patch on the western portion of it, but lived and farmed chiefly on lot No. 178.In 1897 the land was sold to one Munger; but, after keeping it for two years, he failed to pay for it, and surrendered his possession and bond for title.He lived on the south half of lot No. 178, built a plank fence on lot No. 143, and cultivated a portion of it.Each year after Munger left, the place was rented out.In 1899 the tenant cultivated some of the land on lot No. 143.In 1900defendant could not say positively that the tenants cultivated any part of lot No. 143.In 1901 the tenant did so.In 1902 the witness could not say part of lot No. 143 was cultivated.All of these tenants lived on the south half of lot No. 178, and had the option of cultivating lands upon lot No. 143, if they desired to do so.The occupancy of the house and field in the south half of lot No. 178 has been continuous.

One of the plaintiffs testified in regard to the possession, in brief, as follows: The lot in dispute was a part of his grandfather's plantation.After the death of the latter the place was turned out into old fields, and there were no houses, fences, cultivation, or other acts of actual possession exercised over it by any one until Munger built a fence and cultivated a small field on it in 1897.This fence remained about a year, and was torn down; and, while tenants of the defendant had cultivated patches on the lot in dispute occasionally since 1898, there had never been any continuous occupancy of it, nor had there been any cultivation of it by any one during several of the last seven years prior to the bringing of this suit.When Munger built the fence, he was notified that H. J. Harriss owned a half interest in the lot, and so also was the defendant.Neither H. J. Harriss nor these plaintiffs claimed any interest in lot No. 178.There had never been any division of the plantation, except as to lots Nos. 178 and 183, in which H. J. Harriss sold his interest.After H. J. Harriss conveyed the land to the plaintiffs in 1902, one of them went into possession of a portion of it and cultivated it during the years 1903 and 1904. H. J. Harriss had a tenant who cultivated land on lot No. 140 for 10 years or more, and prior to that time he had other tenants.As to lot No. 142, which adjoined the land in dispute, the co-tenant of H. J. Harriss, namely J. M. Harriss, in his lifetime, and his children after his death, cultivated a field continuously, with the exception of a few years, not more than four or five, ever since the death of Joshua Harriss up to about four years before the trial, when the plaintiffs bought the interest of the estate of J. M. Harriss, he having died, and they have been in possession of land and cultivating the field on No. 142 ever since.On the close of the plaintiffs' evidence, the judge directed a verdict for the defendant, and the plaintiffs excepted.

A. G. Powell, for plaintiffs in error.

W. D. Kidder, for defendant in error.

LUMPKIN, J.(after stating the foregoing facts).

As to the actual possession of the lot of land involved in the controversy, or any part of it, there was clearly a conflict in the evidence.In addition to this, the plaintiffs claimed that Joshua Harriss devised his lands to his two sons; that they had acquired the interest of one of these sons; and that they and those under whom they claimed had been in continuous possession of lot No. 143, by being in actual possession of some of the adjoining land which formed a part of the Joshua Harriss plantation.The defendant claimed a prescriptive title under a sheriff's deed, which included lot No. 143 and the south half of lot No. 178, which adjoins it.Aside from the contention as to possession of a part of lot No 143, he contended that he had been in actual possession of the south half of lot No. 178, and that thus his prescriptive title had ripened.If the conflict in the evidence in regard to actual possession at times of a part of the land lot in dispute is material, the presiding judge, of course, erred in directing a verdict.If this be disregarded, under the undisputed evidence the will under which the plaintiffs claimed, and the deed under which defendant claimed, each covered the interest in controversy; and each party asserted constructive possession of the particular lot or interest in it by reason of possession of land claimed to be included in his paper color adjacent to that in controversy, or forming with it part of a...