Lockwood v. Daniel

• Decision Date: 18 September 1942
• Docket Number: 14243.
• Citation: Lockwood v. Daniel, 194 Ga. 544, 22 S.E.2d 85 (Ga. 1942)
• Parties: LOCKWOOD v. DANIEL.
• Court: Georgia Supreme Court

22 S.E.2d 85

194 Ga. 544

LOCKWOOD v. DANIEL.

No. 14243.

Supreme Court of Georgia

September 18, 1942

Syllabus by the Court.

Viewing the evidence as a whole in the light of the rulings made on the former appearance of this case, the plaintiff was entitled to a verdict; and the jury having found for the defendant, the court erred in refusing to grant a new trial.

Geo S. Gargill, of Savannah, for plaintiff in error.

Ernest J. Haar, of Savannah, for defendant in error.

GRICE Justice.

On a former trial a nonsuit was granted.That ruling was reversed by this court, in the report of which may be found a statement of the pleadings.Lockwood v. Danial,193 Ga. 122, 17 S.E.2d 542.On the trial now under review, after the parties had offered testimony, the jury returned a verdict in favor of the defendant.A motion for new trial was overruled and plaintiff assigns error on that ruling.

The plaintiff submitted evidence which supported every material allegation in her petition.The effect of the decision on the former appearance was that if the facts were as stated, the plaintiff would be entitled to have her case passed on by a jury.In reaching that conclusion, which was based on a number of authorities cited, several propositions of law were laid down.Applying those to issues made by the pleadings and to the evidence as a whole as it appears in the present record, the plaintiff was entitled to a verdict.The contentions to the contrary, insisted on by counsel for the defendant, rest on two hypotheses.The first is that the prescriptive title urged by the plaintiff originated in bad faith; for that after the fence was rebuilt in the year 1917 under an agreement between Cargill and Harkness, then coterminous proprietors under whom the plaintiff and defendant respectively claim, each to pay one half of the expense, Cargill in the year 1919 had a survey made which disclosed that this new fence encroached on the property of Mrs. Harkness, and yet he did not so advise Mrs. Harkness.In both deeds the property was described as so many feet, more or less.Cargill testified as follows:

'I bought this lot in 1917.I replaced the fence in 1917.This map made in 1919, two years after that, as to whether it shows the fence was not on the property line; It shows the fence 3.2 feet on the front and 2.26 at the back.I did not say that in 1919, as soon as I found this out, I told Mrs. Harkness the fence was in the wrong place.As to whether I did anything, why should I?

'Q.If the fence stayed in the same place for twenty years you wanted to claim title by prescription?A.I had a deed to thirty feet, more or less; and if Mrs. Harkness was satisfied, why should I complain?I think I looked up the title to this property.I know it called for thirty feet.I returned it for taxation as lot 84.I never said lot 84 and part of lot 86.

'Q.Anyhow, in the practice of law, where the deed calls for thirty feet more or less, the words 'more or less' mean a reasonable difference; you would not say three feet in a thirty foot lot would be a slight variation?A.That is up to the jury.I think it may be so interpreted.It is so held by the Supreme Court.'

The statement that possession to be for the foundation of a prescription must not have originated in fraud can not well be denied.Code, § 85-402.It is in evidence, without dispute, that when the witness originally purchased the property there was an old fence, and that the new fence was rebuilt on the same line.It was afterwards that he had the survey made.When it was made, and it showed that under his deed which called for thirty feet more or less, he was in possession of a strip which at the front measured three and two-tenths feet more, and at the back two feet and twenty-six hundredths more, his not sayting anything to Mrs. Harkness about this did not prove that his possession originated in fraud.No duty rested upon him to impart that knowledge to her, and his withholding it from her did not affect the character of his possession.

Secondly, it is said that there was testimony which contradicted that offered by the plaintiff, and from which the jury could have found that the new fence recently placed there by the defendant, and of which the plaintiff in her petition complains, was on the line of the former fence.We are referred to certain excerpts from the testimony of Walter Zoller, a witness for the plaintiff, and McKenzie.That of Zoller, relied on by and set forth in the brief of counsel for the defendant, is as follows:

'Q.Willyou state whether or not Mrs. Lockwood has considerable property to the rear of her lot as a result of the fence being straightened up?A.Yes, sir, the fence seems further to the other side.

'Q.Further over to Mrs. Daniel's side?A.Yes, sir.

'Q.And therefore Mrs. Lockwood has gained quite a bit of ground, in fact?A.I would say two or three feet.'

The foregoing extract from the testimony of the witness Zoller was immediately preceded by this statement: 'I observed the rear or southern end of this fence after the new fence was put up.'From the quoted extract alone it does not appear what fence he had in mind.He had already testified that he had observed both the new and the old fence; that he had lived on both lots; that he moved to this lot in 1913 and lived there thirteen years; that when he first went there, there was a board fence that extended from the front of the lots to the rear.He further testified: 'I remember the occasion, about 1917, when the old fence was replaced by you [Cargill].It was replaced panel by panel.It was built on the line of the old fence.If there was any change made in the line at that time, it was no more than six inches.'

The testimony of the witness should be harmonized, if possible.In view of the positive statement next above quoted, this court will not construe the word 'fence,' in that part of the testimony first quoted, to refer to the fence recently placed there by Mrs....