McDonough v. Carter

• Court: Georgia Supreme Court
• Writing for the Court: LUMPKIN, J.
• Citation: McDonough v. Carter, 98 Ga. 703, 25 S. E. 938 (Ga. 1896)
• Decision Date: 03 August 1896
• Parties: McDONOUGH et al. v. CARTER et al.

25 S.E. 938

98 Ga. 703

McDONOUGH et al. v. CARTER et al.

Supreme Court of Georgia

August 3, 1896

Syllabus by the Court.

1. Possession of land under a claim of ownership being prima facie evidence of title in the occupant, the latter, upon proof of such possession, and without showing complete title may maintain against a wrongdoer an action for a trespass upon the property, committed while such possession existed.

2. Such an action is maintainable by a partnership composed of two persons in its firm name, where one of its members claimed an undivided two-thirds of the land, and the other the remaining undivided one-third, and they were jointly occupying and using the land in the prosecution of their partnership business.

3. The newly-discovered evidence could, by the exercise of ordinary diligence, have been produced at the trial. There was no error in rejecting evidence, or in directing a verdict for the plaintiffs.

Error from city court of Savannah; A. H. MacDonell, Judge.

Trespass by P. H. Carter and another, partners as P. H. Carter & Co. against J. J. McDonough and others, partners as J. J McDonough & Co. From a judgment for plaintiffs, defendants bring error. Affirmed.

O'Connor & O'Byrne, for plaintiffs in error.

Cain & Kennedy, T. A. Parker, and E. D. Graham, for defendants in error.

LUMPKIN J.

1. In Whiddon v. Lumber Co. (decided at the present term) 25 S.E. 770, this court held that, in order to maintain an action of trespass upon realty, brought to recover damages to the freehold, the plaintiff, if not in possession when the injury was committed, would have to show that he was the true owner of the land by proving title in himself, and that in such case mere proof of former possession would not be sufficient to show title. The present case differs from that in the essential particular that the trespass here complained of was committed while the plaintiffs were in possession. Under section 3015 of the Code the bare possession of land authorizes the occupant to recover damages from any person who wrongfully in any manner interferes with such possession. Consequently, in an action like the present, it is not incumbent upon the plaintiff to show a complete and perfect title, but he may rely upon his possession of the land under a claim of ownership; this being prima facie evidence of title in him.

2. The present action was brought by a partnership composed of two persons in its...