Sparks v. Roberts

• Decision Date: 30 September 1880
• Parties: Sparks. v. Roberts.
• Court: Georgia Supreme Court

65 Ga. 572

Sparks. v. Roberts.

Supreme Court of the State of Georgia

(September Term, 1880.)

*Husband and wife. Prescription. Title. Minors.

Before Judge Hood. Miller Superior Court. October Term, 1879.

Reported in the decision.

H. C. Sheffield; D. A. Vason; Broyles & Jones; C. B. Wooten, for plaintiff in error.

I. A. Bush, by Jackson & Lumpkin, for defendant.

JACKSON, Chief Justice.

This is an action brought by Mrs. Sparks in the old form ofejectment, whereby the demise is laid in her name in the year 1870, and the action is brought in 1879. She claims title from the will of her grandfather, who died twenty-ninth day of September, 1853, and the will was admitted to probate in the next year, 1854. Jones, her grandfather, held a regular chain of title from the grantee of the state, and the defendant held under the same grantee, but under a younger deed, and claims title by prescription, having been in adverse possession of the land ever since the year 1852. Jones\' title from the grantee runs back in regular chain to February, 1826, and Roberts\', the defendant\'s, to December of the same year. Demises are also laid in the names of two trustees for Mrs. Sparks, named in her grandfather\'s will, and in the names of the executors of that will.

The important facts on which the legal questions made in the cause arise, are that the defendant's possession began under regular deed for value in 1852, two years before Jones, the testator died, but during the minority of his granddaughter, Mrs. Sparks—that she became of age some month or two before her marriage—and has been under coverture ever since that time. By the will this lot is not mentioned or devised at all, but by the third item of the codicil, a witness for plaintiff, being one of the *sons and executors of the testator, testified that the testator intended it to go to this granddaughter—that item of the codicil, however, leaves all his lands outside of Burke, Fmanuel and Washington counties, to be divided equally between testator's children and this grandchild, after enough has been sold to pay his debts, if another fund should prove insufficient.

1. Exception is made to the entire charge of the court, but no error is specified therein either in the motion for a new trial or in the assignment of errors in the bill of exceptions. Therefore that exception, being too general, cannot be considered under repeated rulings.

2. So that the sole question is this: Is the verdict contrary to the law and the evidence—that verdict being in favor of the defendant?

If the plaintiff showed title out of Jones in herself through the will, it would give her the older and better title unless she lost it by the lapse of time, and Robert's, the defendant's, adverse possession.

It is not clearly established that the title went into her out of the testator by his will. Debts had to be paid and a division made and...