Powell v. Moore

• Decision Date: 05 February 1947
• Docket Number: 15712.
• Citation: 42 S.E.2d 110,202 Ga. 62
• Parties: POWELL et al. v. MOORE et al.
• Court: Georgia Supreme Court

42 S.E.2d 110

202 Ga. 62

POWELL et al. v. MOORE et al.

No. 15712.

Supreme Court of Georgia

February 5, 1947

Rehearing Denied March 20, 1947.

Syllabus by the Court.

1. All that is essential to a valid verdict is substantial certainty to a common and reasonable intent. By reference to the record in the instant case, the jury's intention to find for the plaintiff all of the land in controversy, was shown with substantial certainty.

2. Where the evidence shows without dispute that the plaintiff's claim to land is derived from one in whom a superior title by prescription has ripened, a verdict is demanded in his favor.

W. D Moore brought ejectment in the fictitious form against Aaron Sharpe, tenant in possession. J. W. Powell, the real claimant, defended the suit. The action sought recovery of 59.32 acres of land in Thomas County and mesne profits. His declaration contained an accurate description of the land. He acquired the land from Mrs. Madie T. Moore, who as he contended, had good title by prescription prior to her conveyance. The defendant denied the land sought to be recovered belonged to the plaintiff and said it was part of a tract of land containing 119.1 acres which he had acquired from W. C Lambert by deed dated November 26, 1938. He vouched his grantor's executor into court. By amendment the defendant alleged that the plaintiff was estopped to dispute his title for the land in controversy because no effort was made to evict W. C. Lambert from the land, who, while in possession thereof, conveyed it to him in 1938, and he had remained in possession since then, making valuable improvements.

In support of his title the plaintiff introduced in evidence a deed from Madie T. Moore to himself, dated June 18, 1938, and a plat prepared by A. L. O. Stephenson, surveyor, on May 14 1937, both of which described the land as claimed by the plaintiff.

H. J. Moore, a predecessor in title of the defendant from 1912 to 1935, as a witness for the plaintiff, testified in substance as follows: That he had been familiar with the tract of land in dispute for about forty years; that his wife, Madie T. Moore, was in possession of this land in 1938, when she conveyed it to the plaintiff, and had held it in continuous, uninterrupted possession 35 to 40 years prior thereto; that she inherited this tract of land from her mother; while there were no buildings on the tract it was under fence except on the back and there had been an old fence on the back for more than 20 years, and the 'remains' were discernible the last time the land was seen by him; that the plat presented to him correctly represented the lines of the 59.32 acre tract. He further testified that he purchased a 75 acre tract, which lies just west of and adjacent to the land in dispute, and known as the 'Lambert 75 acre tract,' in 1912, and remained in possession of it until 1935; that his possession under this deed extended to just 75 acres and included no part of the land in dispute; that he had this tract measured and it contained 75 acres, no more nor less.

Madie T. Moore testified that she had been in possession of the land in controversy for about 50 years; that she was in possession of it when she married 40 years ago and had been for some time prior to that date. She inherited the land from her mother, who was the wife of Philip A. Wade; that she committed no fraud against any one when she went into possession; that there were fences on and around the land and that it had been in cultivation; that her husband last had a tenant on the land about 1935, 1936, or 1937; that her grandmother had lived on the place and that her possession and that of her grantee had never been disputed until now.

The plaintiff, W. D. Moore, testified that he was present when a survey was made of the land in controversy in 1937; that the adjoining landowner, W. C. Lambert, was not present; that at that time W. C. Lambert was cultivating the 75 acre tract but no part of his 59.32 acre tract; that he had been on the land several times after the survey was made but only to look after it; that he went into the military service in 1943 and did not know what happened to the land after that time but he had never abandoned his claim or right to possession.

The defendant introduced in evidence thirteen deeds as his chain of title. The first being a deed from Maggie L. Wade to Peter Moore, dated December 16, 1902. The first four deeds described the land as follows: 'All of the following tract of land lying and being in the 13th district of Thomas County, Georgia, to wit: The following part of lot of land number 267, commencing at a point on the Thomasville and Quitman road and on the south line of said lot nineteen chains and 60 links from the southeast corner of said lot, and run down said road towards Thomasville 21 chains and 80 links to Philip McKinnon and J. M. McKinnon's land--a sapling being the terminal point, then runs north 19 degrees east to the land line, the north line of said lot, thence down the run of said branch southeasterly to P. A. Wade's land, thence along said line southerly to Mrs. Permelia Williams' dower land, thence westerly along said dower line as far as it goes, thence south along said dower land to the starting point, containing seventy-five acres more or less.' The next eight deeds, including the deed to W. C. Lambert, the defendant's grantor, contained the following description: 'Seventy-five (75) acres of lot of land number 267 in the 13th district of Thomas County, Georgia, bounded on north by Mose Williams' land; on east by Mrs. H. J. Moore's [Madie T. Moore] land; on south by public road; on west by P. M. McKinnon's land.' The thirteenth deed from W. C. Lambert to the defendant J. W. Powell, was dated November 26, 1938, and conveyed by definite metes and bounds, a tract of land containing 119.1 acres. As shown by plat attached, this deed purported to convey both the Lambert 75 acre tract and the land sought to be recovered by this action.

Clarence Lambert, as a witness for the defendant, testified in substance as follows: That he had possession of the 75 acre tract and the land in controversy, as a tenant of his father, W. C. Lambert, from August, 1936, until it was sold to defendant on November 26, 1938, but that he didn't know who had possession of it prior to that time--'it seemingly had not been cultivated in several years'; that 'he cultivated up to the fence line on the 75-acre-tract side and that he cultivated the land in controversy either by plowing or pasturing; that he planted some corn and peanuts on the part of the land in controversy.'

Aaron Sharp, the tenant in possession, testified that he rented the land in controversy from defendant in 1940 and had cultivated it continuously since, paying rents to him. No one had interfered with his right to cultivate the land or demanded rents except Mr. Powell. He was familiar with the Lambert tract and thought the plat attached to the W. C. Lambert deed correctly represented its boundaries.

Mr George R. Lilly, an attorney, testifying for the defendant, said that he had examined and was familiar with the deed records of Thomas County, and that no...