Tarver v. Depper
| Decision Date | 24 June 1909 |
| Parties | TARVER v. DEPPER. (State report title: Tarver v. Deppen). |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Upon the trial of a statutory complaint for land, the defendant relied upon a prescriptive title acquired by adverse possession by himself and those under whom he claimed for seven years under color of title. The defendant introduced in evidence a deed wherein title to the land was conveyed to a copartnership, and a writing from one member thereof conveying or mortgaging the land to another to secure the payment of money borrowed by the grantor and to indemnify the grantee against loss by reason of his indorsement of certain notes, in which writing there was a provision that, if the grantor failed to pay such debts within a specified time, the grantee should have the power to sell such property at public outcry, and from the proceeds of the sale to pay such debts. Two years after the execution of such writing the other member of the partnership conveyed the land to the same grantee under whom the defendant claims title. Held:
(a) Upon the trial of such case, there was no error in admitting in evidence the last-named deed over the plaintiff's objection that the title to the land was in the partnership and there was no deed from the partnership, or the other member thereof, to the member conveying such land to the grantee. The deed admitted was admissible as color of title.
(b) If the grantee in such deed was estopped from claiming such land against the member of the partnership executing the mortgage or security deed, such estoppel would not prevent such grantee from acquiring, under the other conveyance to him, as against the plaintiff (who did not hold under such partnership, or any member thereof), a good prescriptive title by seven years' adverse possession.
The plaintiff having introduced a certified copy of a grant from the state to his predecessor in title under whom he claimed title, it was not error of which he could complain that the court permitted the defendant to introduce in evidence the original grant.
A ground in a motion for a new trial to the effect that the court erred in admitting in evidence, over the objection of counsel, a plat referred to in the testimony of a witness cannot be considered when a copy of the plat is not attached to the motion, or sufficiently described therein, especially where it does not elsewhere appear that such plat was introduced in evidence, and a copy thereof nowhere appears in the record.
An assignment of error complaining that the court failed to charge the jury upon all of the material issues of the case without specifying upon what issues the court failed to charge the jury, is too general to permit of consideration.
An assignment of error that "the charge of the court was not applicable to the facts of the case and was to the jury misleading" is too general, and cannot be considered for the reason that it does not appear wherein such charge was not "applicable to the facts of the case," or wherein it "was to the jury misleading."
There is no merit in the assignment of error that the court "failed to charge the jury upon the question of continuity of possession," as it appears from the charge that the court did instruct the jury on this point.
Where title to land is acquired by seven years' adverse possession under color of title, such title cannot be lost by the holder thereof by abandonment.
The evidence was sufficient to authorize the verdict, and the court did not abuse its discretion in refusing a new trial.
Error from Superior Court, Walker County; Moses Wright, Judge.
Ejectment by B. M. Tarver against O. E. Depper. Judgment for defendant and plaintiff brings error. Affirmed.
W. P. McClatchey and Minter Wimberly, for plaintiff in error.
Pritchard & Sizer and R. M. W. Glenn, for defendant in error.
1-6. Tarver brought a statutory complaint against Depper to recover a tract of land on the east side of Lookout Mountain. A verdict was rendered for the defendant. To the order of the court overruling his motion for a new trial the plaintiff excepted. Upon the trial of the case the plaintiff proved a perfect chain of title from the state. The defendant relied upon a prescriptive title alleged to have been acquired by those under whom he claimed by their holding the land adversely for seven years under color of title. The adverse possession under color of title by those under whom the defendant claimed was shown by the evidence to have existed for a period of seven years since the adoption of the Code of 1863. The rulings made in the first six headnotes require no elaboration.
7. The plaintiff contends that the court committed error in failing to charge the jury upon the question of abandonment by those under whom the defendant claims, and contends that the verdict is not supported by the evidence, for the reason that it appears from the evidence that, if those under whom the defendant claims acquired a good title by adverse possession for seven years under color of title, the title thus acquired was lost by abandonment. The defendant held a deed to the property made in 1906, the year before the suit was filed, and there was evidence that those under whom he claims had been in adverse possession of the property under color of title for seven years after the adoption of the Code of 1863. There was some evidence that after 1863 the property during a period of years was not occupied and the houses thereon were allowed to go to decay by those under whom the defendant claims. To support his contention that, if the defendant and those under whom he claims acquired a good title, it could be lost by abandonment, counsel relied mainly upon the decision of this court in the case of Vickery v. Benson, 26 Ga. 582, where it was held: "Although one holds another's land adversely for seven years under color of title and claim of right, yet, if he then abandons the land, he cannot claim the benefit of the statute of limitations." It should be borne in mind that this decision was rendered, and the abandonment therein referred to occurred, prior to the adoption of the Code of 1863. It was held in the case of Watkins v. Woolfolks, 5 Ga. 261: (1) "Where a plaintiff in ejectment had been in possession of land for the period prescribed by the statute of limitations, holding adversely under color of title, held, that the action was maintainable against a defendant who had a regular chain of paper title, but who entered upon the premises after the expiration of seven years." (2) "The statute of limitations of this state, not only bars the right of action after the expiration of seven years, but bars the right of entry also." On page 268 it was said: ' This act provided that all suits for the recovery of land should be brought within seven years after the right of action accrued, "and at no time after the said seven years." It also provided that no person now having, or who may hereafter have, any "right or title of entry," shall make such entry unless made within seven years after the passage of the act, or after the right thereafter accrued. It was not necessary under the provisions of that act for the right of action or entry of the true owner to be barred after the expiration of seven years from the accrual thereof that another should hold the land under color of title. See Pendergrast v. Gullatt, 10 Ga. 218, where it was held: "Possession of land under color of paper title is not indispensably necessary to protect the tenant under the statute of limitations." It was only necessary that such possession should be adverse. There was no law in this state defining what constituted adverse possession until the adoption of the Code of 1863, nor until such Code was adopted was there any statute in this state relating to possession under color of title, or in any other respect relating to color of title. However, it was held in the case of Moody v. Fleming, 4 Ga. 115 ...
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