Jackson v. Lipham

• Decision Date: 18 July 1924
• Docket Number: (No. 4283.)
• Parties: JACKSON. v. LIPHAM et al.
• Court: Georgia Supreme Court

158 Ga. 557

123 S.E. 887

JACKSON.

v.LIPHAM et al.

(No. 4283.)

Supreme Court of Georgia.

July 18, 1924.

(Syllabus by the Court.)

Error from Superior Court, Heard County; C. E. Roop, Judge.

Ejectment by T. A. Lipham, executor, and others against R. W. Jackson. Judgment for plaintiffs, and defendant brings error. Affirmed.

This was an action in ejectment in the fictitious or John Doe form. The tenant in possession is R. W. Jackson, referred to in the record as Reuben Jackson. The defendant filed a plea of not guilty, and further set up a title by prescription. By an amendment to his answer he alleged, that he claimed a one-half undivided interest in the premises under purchase from Joe T. Jackson, administrator of William Jackson, deceased, and the other half by oral purchase from Sam T. Jackson on or about the first Tuesday in December, 1899; that he paid Sam T. Jackson for this half interest by. giving him a certain note which he held against Jackson; that the latter accepted said note in payment for said undivided half interest; and that he went into possession and has been in possession of the same since said date. The defendant claims title to the land under an administrator's deed from J. T. Jackson, administrator of William Jackson, under the terms of which the administrator conveyed to him the entire fee in said land, and he has been in peaceable, adverse, notorious, open, and uninterrupted possession thereof for more than seven years. He further alleged that if, in point of fact, Sam T. Jackson owned an interest in said laud on the first Tuesday in December, 1899, he stood by at a public sale of the same and saw it sold to this defendant, that he made no objection to said sale, but acquiesced therein, and is now estopped from setting up any title or interest therein. On said date Joe T. Jackson, as administrator of the estate of William Jackson, sold said lands to this defendant at public outcry before the courthouse door at Franklin, Ga. The proceeds of said sale went into the general funds of the estate of William Jackson, which was known to Sam T. Jackson, and with full knowledge of the same he permitted said administrator to wind up said estate without objection. Sam T. Jackson was heir to said estate, being the son of William Jackson.

The evidence for the plaintiff makes this case: Sam T. Jackson, under whom plaintiff claims, and R. W. Jackson, the defendant, were sons of William Jackson. William Jackson at one time owned two tracts of land; one known as his home place, and the other as his bottom lands. The bottom lands contained 116 or 117 acres. After the death of William Jackson his administratorbrought an action of ejectment against Sam T. Jackson and R. W. Jackson, to recover the last-named place. This suit resulted in a verdict finding in favor of Sam T. Jackson a one-half undivided interest in the lands sued for. A decree was entered on said verdict, awarding said undivided half interest to Sam T. Jackson. This was at the March or September term, 1899. Thereafter Sam T. Jackson and the defendant divided this tract of land. Under this division the premises in dispute, consisting of the north half of this tract, fell to Sam T. Jackson. On March 22, 1915, Sam T. Jackson by deed conveyed the premises in dispute to T. A. Lipham. Up to the time of this conveyance Sam T. Jackson claimed the premises in dispute, and at various times made declarations of his claim of title thereto. Reuben Jackson stated to one John If. Jackson that he and Sam T. Jackson had divided the tract known as the bottom lands. After the administrator sold said tract, the defendant went into possession of a half interest and claimed it. From 1899 to 1912, inclusive, Sam T. Jackson returned 50 acres in land lots 2 and 3 in the thirteenth district, and 58 1/2 acres in same lots and district in 1913 and 1914. Sam T. Jackson and the defendant returned 100 acres in land lot 4, thirteenth district, from 1900 to 1914. The defendant returned 58 1/2 acres in land lots 2 and 3 of the thirteenth district, 1900-1914, and in 1915 returned 216 acres in land lots 2, 3, and 4 in said district. S. T. Jackson returned 58% acres in his own name. There is some evidence from which the jury might infer that the defendant made the above returns for Sam T. Jackson.

The premises in dispute contained 40 1/2 acres in the northwest corner of land lot No. 2, and 18 acres in the northeast corner of land lot No. 3, In the thirteenth district, and bounded on the south by the lands of Reuben Jackson, on the east by the lands of Bell Favor, on the north by the lands of the estate of John J. Jackson, and on the west by the lands of B. N. Jackson. They constitute practically the north half of the tract In which Sam T. Jackson secured a half interest in 1899.

The plaintiff introduced letters testamentary issued to T. A. Lipham, as executor of the last will of Sam T. Jackson, the ejectment suit in Heard superior court in favor of John Doe on the demise of Joseph T. Jackson, administrator of William Jackson, against Richard Roe, as casual ejector, and R. W. Jackson and Samuel T. Jackson, as tenants in possession, for the recovery of the property in dispute and other property, a disclaimer filed by Reuben Jackson, the answer of Sam T. Jackson in which he set up a claim of title to an undivided half interest in the premises in dispute, the verdict in said case, rendered at the March or Sep tember term, 1899, of Heard superior court, finding in favor of Sam T. Jackson a one-half undivided interest in the lands sued for, with the decree of the court thereon, and said deed from Sam T. Jackson to T. A. Lipham, together with the tax returns as above set out. There was some evidence that Sam T. Jackson, who was unmarried, permitted the defendant to use these premises in order to support his family.

The evidence for the defendant made this case: The declarations of Sam T. Jackson, disclaiming title to the premises in dispute and admitting title thereto to be in the defendant; the purchase by the defendant from Sam T. Jackson of his interest in the premises In dispute, as alleged in defendant's answer; the presence of Sam T. Jackson at the sale of this land by the administrator, where he made no objection to the sale and set up no claim to this land, but stated that this land was his father's estate; that he and his father owed the defendant some money; that he agreed for the defendant to buy the property at the administrator's sale; that the defendant, after the administrator's sale, went into possession, claiming title to this land; and that defendant had ever since said sale been in possession thereof and claiming the same. The defendant introduced a deed from Joe T. Jackson, administrator of William Jackson, to himself, conveying the premises in dispute, and the advertisement of the sale of the land by the administrator. There was also evidence that the defendant exercised acts of ownership and control of this property from 1899 down to the institution of this suit.

The jury returned a verdict in favor of the plaintiff. The defendant moved for a new trial on the general grounds, and by amendment added the following grounds:

(1) Because the court erred in charging the jury as follows: "You understand the plaintiff in this case is at variance with the defendant about it. He insists that R. W. Jackson knew that only an undivided one-half interest was being sold, and that he bought only an undivided one-half interest, and that he paid for only an undivided one-half interest, and that he bought it knowing that Sam T. Jackson owned an undivided one-half interest in the land. If that is the truth about the business, gentlemen, the plaintiff in this case would not be estopped, and R. W. Jackson would have acquired only an...