Moss v. Chappell

• Decision Date: 13 August 1906
• Citation: 54 S.E. 968,126 Ga. 196
• Parties: MOSS et al. v. CHAPPELL et al.
• Court: Georgia Supreme Court

54 S.E. 968

126 Ga. 196

MOSS et al. v. CHAPPELL et al.

Supreme Court of Georgia

August 13, 1906

Syllabus by the Court.

If a defective exception to an auditor's report, filed within 20 days after the report is filed, is not amendable after the expiration of 20 days, the allowance of the amendment is in effect a judgment of the court that the exception is amendable at that time; and as long as this judgment stands unreversed the exception is to be treated as duly filed.

A plaintiff in ejectment may recover upon his prior possession alone against one who acquires possession subsequently by mere entry, and without any lawful rights whatever.

"Ordinarily it is not necessary to anticipate the defense; and where the plaintiff relies on possession, he need not aver that the defendant is a trespasser, but evidence of prior possession alone is sufficient to put defendant on proof that he has a better title than that of plaintiff,"

"It is a familiar maxim of the law that land cannot pass as appurtenant to land."

A deed to a railroad company contained the words: "Provided that should said strips of land cease to be used for railroad purposes, it shall revert" to the grantors. Held, that the words quoted created a condition subsequent, a breach of which would work a forfeiture.

When a grantee in a deed containing a condition subsequent that when the land shall cease to be used for a given purpose it shall revert, or one claiming under such grantee, divides the land in such a way that a dividing line is clearly established and devotes one portion of the tract to uses entirely foreign to that purpose, there is a breach of the condition as to the portion so used, and those claiming under him who made the division and recognizing the division thus made cannot defeat the right of the grantor to enter, merely upon the ground that the condition in the deed did not provide that the land should revert if it or any portion thereof should cease to be used for the purposes specified. The segregation of the property as against such persons divided the condition.

A waiver of a forfeiture resulting from the breach of a condition subsequent in a deed in favor of a named person and for a stated purpose is limited to the terms of the waiver and does not destroy the condition altogether.

The grantor in a deed containing a condition subsequent, upon the breach of such condition, is not revested with the title until there has been an entry. The grantor may enter peaceably if he can, or assert his right to enter by an action for the recovery of the possession of the land against the grantee, and those claiming under him.

Error from Superior Court, Rahun County; J. J. Kimsey, Judge.

Action by R. L. Moss and others against C. C. Chappell and others. Judgment for defendants, and plaintiffs bring error. Reversed.

In 1882 R. L. Moss and A. K. Childs conveyed to the Northeastern Railroad Company all their interest in the roadbed upon which was laid the railroad track of the company as it ran through lot 184 in the thirteenth district of then Habersham, now Rabun county, and "also the strip of land lying between the railroad and public road on the south side of the track from the railroad crossing east to the eastern line of said lot; also the strip from the main track to 10 feet beyond and north of the turntable and the track leading thereto." Following the description of the property were these words "Provided that should said strips of land cease to be used for railroad purposes, it shall revert to said R. L Moss and A. K.

Childs." In 1887 the Northeastern Railroad Company executed and delivered to William Bailey Thomas a deed to property described as follows: "The Northeastern Railroad from Cornelia to Tallulah Falls, lying and being in the counties of Habersham and Rabun in said state, being about 21 miles in length, including the right of way, superstructure, depots, switches, side tracks, tools, section cars, buildings, wood for locomotives on hand along the line, water privileges, and all appurtenances of said right of way, together with the telegraph line, instruments and other property thereto belonging and appertaining; also the right, privilege, and franchise to operate a railroad between Cornelia and Tallulah Falls aforesaid; also the lots of land adjacent to the depot lot at Clarksville and supposed to contain five or six acres in the aggregate, and the land lot belonging to the said The Northeastern Railroad Company near Tallulah Falls, through which said railroad runs. No other lands owned by said Northeastern Railroad are conveyed." In 1898 Thomas conveyed to the Blue Ridge & Atlantic Railroad property described as follows: "The railroad from Cornelia to Tallulah Falls, lying and being in the counties of Habersham and Rabun, state of Georgia, being about 21 miles in length, including the right of way, superstructure, depots, switches, side tracks, tools, section hand cars, buildings, water privileges and all the appurtenances of said right of way, and also the right, privilege, and franchise to operate said railroad." On December 7, 1891, Thomas executed a mortgage to Chappell to a portion of one of the strips described in the deed from Childs and Moss to the Northeastern Railroad Company. This mortgage appears to have been recorded twice, first on January 5, 1892, and again on April 25, 1893. On March 1, 1892, Thomas executed a mortgage to Hodgson to secure a debt for $1,000 on the same property described in the mortgage to Chappell. On this mortgage appears an entry dated May 25, 1892, in the following words: "To the extent of the within mortgage we hereby waive any right of reversion under condition in deed to this property from us to the Northeastern Railroad Company, but no further. Childs and Moss." The property embraced in this mortgage was levied on under a tax execution against Thomas, and Hodgson purchased the same at the tax sale had on March 10, 1894. Hodgson instituted proceedings to foreclose his mortgage, and obtained a judgment foreclosing the mortgage as well as a general judgment against Thomas on March 20, 1893, and execution was issued accordingly. This execution was levied on the property, Childs and Moss being in possession at the time, and at the sale by the sheriff, on May 1, 1894, they became the purchasers, and remained in possession. Subsequently to this, a tender was made to R. L. Moss for the purpose of redeeming the property under the tax sale. This tender was refused. Thereafter Chappell instituted proceedings to foreclose his mortgage, and obtained judgment of foreclosure, the rule nisi being served upon Thomas; and the execution issuing upon this foreclosure was levied upon the property, and at a sale had on the first Tuesday in December, 1896, Chappell became the purchaser for the sum of $100, and the tenant of Childs and Moss was turned out of possession by the sheriff, and a tenant of Chappell placed in possession. Neither Childs nor Moss had any notice of the foreclosure or sale thereunder until the sale had taken place and their tenant had been ejected. Childs and Moss then filed an equitable petition against Chappell, and Thomas, and the sheriff of Rabun county, alleging that they were the owners of the property embraced in the mortgage above referred to, that they held title to the same under a chain of title originating in the state, setting forth in substance the facts above referred to. The prayers of the petition were that the sheriff's deed to Chappell be canceled, that Thomas be decreed to have no further interest in the property, and that they recover possession of the same. By amendment it was alleged that the foreclosure sale at which Chappell became the purchaser was advertised in a paper published in Hall county, instead of in a newspaper published in Rabun county, and also that the debt due by Thomas to Chappell was based upon a gaming consideration, and the mortgage was therefore void, It was also alleged that the judgment of foreclosure was fraudulent and collusive. Answers were filed by each of the defendants. Hodgson was subsequently made a party. The case was referred to an auditor, who filed a report which in effect amounted to a finding that the plaintiffs were not entitled to recover. Numerous exceptions of law and fact were filed to this report. These exceptions were all overruled, and the report of the auditor was made the judgment of the court. The plaintiffs excepted.

Jno. J. Strickland and R. E. A. Hamby, for plaintiffs in error.

W. S. Paris and H. H. Dean, for defendants in error.

COBB, P.J. (After stating the foregoing facts.)

1. The first matter for consideration relates to a question of practice. The original exceptions to the auditor's report were filed in due time, but some of them were defective for the reason that they did not embody the evidence necessary to a determination of the questions involved, nor point out where such evidence might be found in the brief of evidence filed by the auditor. After the time fixed by law for the filings of exceptions to the report had expired, a motion was made to amend the exceptions so as to embody therein the evidence material to a decision of the questions raised. The court allowed the exceptions to be amended, and no exception was taken to the order allowing the same. It is now contended by the defendant in error that these exceptions should not be considered, because they did not, as originally filed, comply with the law; and it is also contended that some of the exceptions, even as amended, were defective for the reason that the amendment set out certain evidence and recited that the error would appear from the evidence set out and other evidence in the record, and did not specify what other evidence was referred...