McDonald v. Wimpy
| Decision Date | 08 January 1947 |
| Docket Number | 15663. |
| Citation | 41 S.E.2d 257,202 Ga. 8 |
| Parties | McDONALD v. WIMPY. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 7, 1947.
Syllabus by the Court.
1. A constable has no authority to levy a tax fi. fa. where the principal amount exceeds $100, and a deed made pursuant to such a levy and sale is void.
2. Although void, such a deed is sufficient color of title upon which to base prescription; and since there was evidence which would have authorized the jury to find that the plaintiff had acquired a prescriptive title to the land in dispute, the trial court erred in directing a verdict for the defendant.
3. Under the facts disclosed by the record, the rules of law with reference to coterminous landowners, and prescription by constructive possession as between them, have no application to this case.
4. The special ground of the motion for new trial, complaining of the exclusion of evidence, is without merit.
5. No ruling is made on the question of estoppel, since upon another trial the evidence may be different.
On January 10, 1946, J. C. McDonald brought an equitable petition against Ernest F. Wimpy, alleging the plaintiff's ownership and possession of 'land lot 1131 in the 12th district, 1st section, of originally Cherokee, now Lumpkin, County, Georgia, containing forty acres, more or less.' The plaintiff prayed for an injunction against trespass, a decree of title, and for general relief. In his answer the defendant denied the plaintiff's ownership of the property in question, and further averred that the defendant is the owner of the feesimple title to the property, and that he and his predecessors in title have been in the adverse possession of the property, under a legal chain of title, for more than twenty years.
On the trial of the case, the plaintiff introduced, as a part of his documentary proof, the following: 1. Tax receipts for the years 1934, 1941, 1942, 1944, 1945. 2. A warranty deed from John H. Moore to the plaintiff, dated August 10, 1932, and recorded on September 12, 1932 conveying 'all that tract or parcel of land, lying situate, and being in the Twelfth (12th) District and First (1st) Section, in the County of Lumpkin, State of Georgia and being lots of land known and distinguished in the plan of said district and section by lot numbers One Thousand One Hundred and Thirty (1130); three acres, more or less, of lot of land number One Thousand One Hundred and Thirty-one (1131); three acres, more or less, of a lot of land number One Thousand and One Hundred and Forty-eight (1148); said tract, containing forty-five acres, more or less.' 3. A tax execution, together with entries, and an accompanying sheriff's deed, conveying to the plaintiff 'that certain tract or parcel of land in said County of Lumpkin, State of Georgia, to wit: lot of land Eleven Hundred and Thirty-one (1131) in the 12th district and 1st section, containing forty acres, more or less.' This deed was dated April 7, 1931, and was recorded May 12, 1931.
The defendant introduced in evidence a warranty deed from A. C. Wheeler, E. D. Kenyon, and Mrs. Frank Christian to the defendant; dated December 1, 1944, and recorded October 20, 1945, conveying 'the agricultural interest only in land lot 1131 in the 12th district and first section of Lumpkin County, Georgia.'
The plaintiff testified in part as follows: 'I have a deed to land lot 1131 in the 12th district, 1st section, of Lumpkin County. * * * The visible evidence of my taking charge of this property is, well, the first was I drove a house car on it up here from Florida, camping on the property something like six weeks. It was on top of a hill and the other lot was down, and during the time the boys and myself as a hobby set out trees in one corner and trimmed up other trees and began to get it ready, and built later--built a cow pasture up there. And later on I prospected the property and kept people from cutting wood on it. Some people had been on it and cut wood. Mr. Jenkins in his lifetime went on it and cut quite a bit of wood, and I went and talked to him. He was under the impression the Standard Gold Mine Company owned it, and I told him, 'No, I brought it,' and asked him to stop which he did. And then along about ...
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Moultrie v. Wright
...v. Walker, 209 Ga. 916, 918(2, 3), 76 S.E.2d 698 (1953); Carnes v. Pittman, 209 Ga. 639, 642, 74 S.E.2d 852 (1953); McDonald v. Wimpy, 202 Ga. 8, 12(2), 41 S.E.2d 257 (1947); Smith v. Jefferson County, 201 Ga. 674, 678(1), 40 S.E.2d 773 The contrary holding in Patterson appears to be based ......
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McDonald v. Wimpy
...not such charge is abstractly correct, it conflicts with the law of this case, which has become settled by the decision in McDonald v. Wimpy, 202 Ga. 8, 41 S.E.2d 257. (e) was harmful to the plaintiff, because it was calculated to lead the jury to think it would be conclusively presumed tha......
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McDonald v. Wimpy
...verdict for the defendant, this court upon review reversed the judgment overruling the petitioner's motion for new trial. McDonald v. Wimpy, 202 Ga. 8, 41 S.E.2d 257. In opinion of the court it was ruled that the sheriff's deed upon which the petitioner relied as a conveyance of title was o......