Pennington v. Palmer

• Decision Date: 20 September 1934
• Docket Number: 22099.
• Citation: 176 S.E. 697,49 Ga.App. 540
• Parties: PENNINGTON v. PALMER.
• Court: Georgia Court of Appeals

176 S.E. 697

49 Ga.App. 540

PENNINGTON v. PALMER.

No. 22099.

Court of Appeals of Georgia, First Division

September 20, 1934

Syllabus by Editorial Staff.

One in possession of land under bond for titles from true owner with purchase money partly paid, is owner of freehold relatively to all persons except maker of bond and those claiming under him.

Plaintiff need not have perfect title to recover for trespass upon land.

Title to timber is title to realty and must be in writing.

Deed made in execution of power of sale, containing statement that it was made in pursuance of sale under power and that all terms of power were complied with, held admissible where deed containing power was also admitted in evidence.

Recitals in deed as to advertisement, public sale before courthouse, highest bidder, and the like are prima facie correct, but maker and those claiming under him are not estopped to show contrary.

Error from Superior Court, Jefferson County; R. N. Hardeman, Judge.

Suit by J. C. Palmer against L. T. Pennington. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Affirmed.

Conforming to opinion of the Supreme Court in 179 Ga. 76, 175 S.E. 380, and withdrawing opinion of the Court of Appeals in 46 Ga.App. 559, 168 S.E. 114.

M. C. Barwick, of Louisville, for plaintiff in error.

Joseph Law and Lewis & Lewis, all of Waynesboro, and R. N. Hardeman, Jr., of Louisville, for defendant in error.

Syllabus OPINION.

GUERRY Judge.

1. In view of the opinion of the Supreme Court in this case on certiorari, Palmer v. Pennington, 179 Ga. 76, 175 S.E. 380, the opinion rendered by this court in Pennington v. Palmer, 46 Ga.App. 559, 168 S.E. 114, is withdrawn, and the following opinion is substituted therefor.

2. "'One in possession of land under a bond for titles from the true owner, with purchase-money partly paid, is the owner of the freehold relatively to all persons except the maker of the bond and those claiming under him.' Fulton County v. Amorous, 89 Ga. 614 (3), 16 S.E. 201; Rosette v. Shelton, 159 Ga. 422, 126 S.E. 242. That principle was applicable in the case."

3. Notwithstanding a bond for title is color and requires seven years' possession thereunder for ripening into a complete title, the perfect title is not essential to a right of recovery for trespass upon land.

4. Title to timber is title to realty, and must be in...