Hinson v. Crosby & Co.

• Decision Date: 28 February 1882
• Citation: 68 Ga. 767
• Court: Georgia Supreme Court
• Parties: Hammond & Hinson. vs. Crosby & Company.

68 Ga. 767

Hammond & Hinson. vs. Crosby & Company.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1882.

Title. Prescription. Deeds. Before Judge SIMMONS. Appling Superior Court. October Term, 1881.

Reported in the decision.

Roberts & DeLacy, by Harrison & Peeples, for plaintiffs in error.

G. J. Holton & Son, by Jackson & King, for defendants.

Speer, Justice.

Crosby & Co. brought their action of trespass against the plaintiffs in error to recover damages alleged to have been committed by them by boxing the pine timber growing on lot 268 in the 2d district of Appling county, said boxing being done for turpentine purposes. To this suitdefendants pleaded the general issue. The case came on for trial, and under the evidence and charge of the court, the jury returned a verdict for plaintiffs. Defendants moved for a new trial, which was refused, and they excepted.

Plaintiffs below introduced in evidence a deed made by Gardner Wiley, sheriff, to G. J. Holton, to the lot in dispute as color of title, duly attested, and dated June 17th, 1872, recorded November 26th, 1880. Second, a deed from Holton without warranty (except against the maker) to Henry Mims, dated February 22d, 1873, recorded November 26th, 1880. A quit claim deed from Henry Mims to Silas A. Crosby dated February 17th 1880, recorded November 26th, 1880. A deed from S. A. Crosby to S. A. Crosby & Co. (plaintiffs), dated May 3d, 1880, recorded November 25, 1880, the said deeds embracing the land in dispute.

Defendants offered a written evidence of title as follows:

Plat and grant from state of Georgia to lot in dispute to William A. Gurley, dated June 9th, 1842. Letters of administration on estate of Wm. A. Gurley to Thos. G. Lawson, dated February 7th, 1871. Certified copy of order of court of ordinary for sale of wild and cultivated lands of the county of Appling, embracing lot in dispute. A deed from Lawson, administrator of Gurley, to L. F. Hinson and John Hammond, dated August 27th, 1880, recorded November 9th, 1880.

Under the admission in evidence of these title deeds, and the parol evidence submitted, the jury, under the charge of the court, returned a verdict for the plaintiff.

The defendants made a motion fur a new trial, which was refused, and they excepted.

This action for trespass upon this lot of land brought by the plaintiffs below, rests upon a title they claimed to have made out by prescription, to-wit: Seven years adverse possession held bona fide under a claim of right.

The defendants rely upon a regular chain of title from the grant down regularly executed to the defendants alleged to be trespassers, and the rights of the respective parties are to be determined by the answer to the question, which of them exhibited the better title.

Plaintiffs below claim as the origin of their title to the lot and as color of title, a sheriff's deed made to Bolton, dated June 17th, 1872, and possession thereunder up to November, 1880, when it is alleged the trespass was committed. Holton, without warranty (except as against the maker), on February 22d, 1873, conveyed to Mims. Mims by quit claim conveyed, on February 17th, 1880, to S. A. Crosby, and he by deed May 13th, 1880, conveyed to plaintiffs below;—all of these deeds embraced the lot in dispute. The land it is claimed was sold as the property of Hayes, and at the date of the sheriff's deed Holton, the purchaser, was put in possession; and the tenant then in possession attorned to him. Holton sold land to Mims and put him in possession, declined to make Mims a general warranty deed for the sole reason that he had not held the lot for seven years under his purchase at sheriff's sale. Mims under his purchase went into possession, and continued therein till his sale to S. A. Crosby. During the time he held it planted every year six acres—all of the open land on the lot. Houses on the place were sometimes vacant, sometimes occupied by his tenants. Had some doubts about his title, but thought it good. He did not communicate to Crosby his doubts about the title. Crosby went in under his purchase from Mims, and has held it ever since. Plaintiffs proved by another witness he had passed over the land two or three times a year for the past seven or eight years and saw a small field of oats growing on it. Improvements consisted of two or three log houses and about six acres cleared on^;".

Hinson, sworn for defendant, testified, while Mims was in possession of l®t, heard him say he had no faith in his title. No one had been in possession for twelvemonths previous to the purchase of same by Hinson and Hammond, on 27th of August, 1880. In the fall of 1879,...