Adams v. Powell

87 Ga. 138 | Ga. | 1891

Simmons, Justice.

1. The record shows that the source of title of Powell, the plaintiff in the court below, was a deed from James M. Austin to John M. Horsey, made on April 6th, 1865, to the southwest part of lot number 200 m the 18th district of DeKalb county, containing 93 acres more or less; and that the source of the defendant’s title was a deed from Dobbs to Goodwin and from Goodwin to Bridwell, etc. As far as appears from the record, the plaintiff’s title was not connected with either Solomon or Starling Goodwin. There is no indication in the record how Austin’s title originated. The court therefore erred in charging the jury that if they believed that this title originated in the Goodwins, and passed from the Goodwins to the others until it came down to Powell and Strong, there was a common owner from whom both claimed; and that there was no dispute as to the title to this lot of land being in the Goodwins and those who claimed under the Goodwins. As we have sworn, there was no evidence on which to' base this charge.

2. We think the court erred also in charging the jury, under the facts of this case, that if Strong’s deed specified 100 acres, more or less, of the north half of this lot of land, and Powell’s deed specified 98 acres in the south half of the lot of land, they were then to find how many acres were in the lot, after deducting the Lansford tract; and that if Strong had 100 acres without taking in the 20 acres'in dispute, and Powell did not have 93 acres without including the 20 acres, then Powell would be entitled to recover the 20 acres sued for. The record discloses that Solomon Goodwin, Sr., purchased the lot of land from Dobbs in 1838, and that he gave it to his two sons, Solomon and Starling. The evidence shows that these sons divided the land between them, Solomon taking the north or northeast half, and Starling the south or southwest part of the lot, and that they resided on their respective parts for many years, recognizing the line established by them in the beginning of their possession. In all the deeds to that portion of the land which was assigned to Solomon Goodwin, it is described as the north or northeast half of lot number 200 ; and in all the deeds to that part of the lot which was assigned to Starling, the land is described as the south or southwest part of lot 200, with the exception of the deed from Ilager to Julia Powell, which describes it as the southwest half of said lot. This is an indication that the land was not equally divided between the two brothers, but that Solomon got the north half, and Starling got the balance that was left after deducting the 50 acres of Lansford, or the south or southwest part of the land. This seems to be a recognition that there was a boundary line established between the two brothers, and that this boundary was recognized by subsequent purchasers. We think, therefore, that upon the next trial of the case, the jury should be instructed to inquire whether these Goodwin brothers did establish a boundary line between them, and whether it was recognized by them, and whether subsequent purchasers and grantors recognized the same boundary line. If such a line was established and assented to by different owners for a sufficient length of time, and there were a hundred acres or more on the north side of the line thus established, and Strong purchased the land on the north side, he would be entitled to hold it, although there were more than a hundred acres on that side; for his deed calls for 100 acres, more or less. If, however, there was no such line established, or, if established, it was not assented to or recognized by the various parties claiming the two portions of the lot, then of course this rule will not prevail; and the rule would be that if there was no line established and recognized, and Strong had his hundred acres, and it' took twenty acres to make Powell’s ninety-three, Powell would be entitled to recover the same, provided his deed covered the twenty acres. In other words, if there was an actual physical boundary between the two portions of the lot, and Strong’s purchase included the land up to that actual physical boundary, then he would he entitled to hold the land up to that boundary, although it may include more than 100 acres. If there was no such boundary line, but it was an ideal or imaginary one, the jury should find from the evidence -its location, and if Powell’s purchase covers the land up to that location or line, and the land in dispute is on. Powell’s side of that line, then he would be entitled to recover. This would be the rule in the contest between the G-oodwm title and the Dorsey title.

If, however, both parties claim under Dorsey as the common grantor, and Mrs. Dorsey sold the land tjy an actual physical boundary, Powell would be entitled to the land up to that boundary, whether it was 98 acres or not. If the land was not. sold by an actual physical boundary, but an ideal or imaginary one, then, in our opinion, Powell -would be entitled to 93 acres, although it might leave Strong short of his 100 acres, because Mrs. Dorsey sold the south part of the land to Wallace, under whom Powell claims, before she sold the north part to James O. Powell, under whom Strong claims.

Of course, neither of these rules would apply if either of the parties or those under whom they hold had had exclusive adverse possession of the 20 acres a sufficient length of time to give title under the statute.

Judgment reversed.